Petition for Writ of Certiorari — Sibley v. Sibley

IN THE SUPREME COURT OF THE UNITED STATES

MONTGOMERY BLAIR SIBLEY,

Petitioner,

VS.

BARBARA SIBLEY,

Respondent.

On Petition for Writ of Certiorari to

the Florida Third District Court of Appeal

Petition for Writ of Certiorari

Montgomery Blair Sibley

560 Longhorn Crescent

Rockville, Maryland 20850

(202) 478-0371

Counsel for Petitioner

-j-

QUESTIONS PRESENTED FOR REVIEW

First, whether the Florida Third District Court of Appeal-

approved procedure for stripping Father of custody of his minor

children and terminating all Father’s parental rights violated

procedural due process guarantees.

Second, whether the Florida Third District Court of

Appeal-approved evidence for stripping Father of the custody of

his minor children and terminating all Father’s parental rights

violated substantive due process guarantees.

Third, whether Florida Statute §61.30(12(c) violates

equal protection guarantees by denying to Father’s child of his

second marriage equal support from Father to that of Father’s

children from his first marriage.

Fourth, whether setting Father’s child support obligations

at a level which bears no relationship to his ability to pay is

arbitrary or without reasonable relation to some purpose within

the competency of the state to effect.

Fifth, whether the Supremacy Clause was violated when

Father (i) was prohibited by a Florida State Court judge from

suing in federal court and (ii) was sanctioned for failing to

appear for a state court hearing when he was appearing in

federal court pursuant to a subpoena at the same time in a

different state.

Last; whether the Florida Third District Court of Appeal

procedure approved by the Florida Supreme Court of issuing

opinions per curiam without written decision violates Father’s

equal protection rights.

TABLE OF CONTENTS

Cosptions PURRUURON oom 6-42 004540 o rd i

Tapes af AON... oc 6 odo ks 05 eee iv

Gooimtens BOG 2 osc en kdend yee eee 1

eee 2c kc ieee bi kaka eee ems 2

Constitutional Provisions, Statutes and Regulations Involved

er ee Pe i 2

Statement of Che Cale oi. 6.6 des Clee eee 2

Reason for Granting the Writ...................4.. aes ae

[. The Florida Family Court Proceedings Violated

Father’s Procedural Due Process Guarantees ...... 5

A. Delay in Conducting Change in Custody

Proceedings Violated Due Process ........ 6

B. Judge Lando Improperly Limited Father's

Presentation of Evidence .............;. 8

o Judge Lando Abdicated Her Responsibility By

Her Verbatim Entry of the Proposed Orders from

Mother's COMME 455s eee eee 8

D. Judge Lando’s Termination of Father’s Parental

Rights Violated Father's Fundamental and Due

Process TMS og 6:k.0 45 Seay eens 9

E. Lack of Notice to Father of the Expansion of the

Hearings Beyond the July 27, 2000 Allegations

Violated Father’s Due Process Rights ..... 10

If.

(if.

VI.

KF. Judge Lando Utilized Stale Evidence Which

Caused Her To Mis-Recollect the Testimony

ee Bere nM LES aes wa ks Oe ees i2

G. The Bias of Judge Lando Against Father Violated

Father's Due Process Rights ............ 12

H. _ Florida Public Policy Requires Attorney Fees and

Costs To Be Borne By Mother ........... 14

The Florida Family Court Proceedings Violated

Father’s Substantive Due Process Guarantees .... . 15

Father’s Support Obligation Offends Equal Protection

ep Ee ee a ae eee 17

Father’s Support Obligations Violate Due Process . 20

Father was [Improperly Prohibited From Suing in Other

Courts and Was Improperly Sanctioned ......... 22

The Florida Supreme Court and the Third District Court

of Appeal Violated Father’s Equal Protection Rights

A. The Per Curiam Affirmance Violates Equal

Protection By Denying Florida Supreme Court

Review of Florida District Courts of Appeal

ae Las wlan yo a a a Kes 24

B. The Per Curiam Affirmance Violates Equal

Protection By Creating [ntra-Third District

Res UL tees ees a ON oes ae a 25

ee aw ws 30

cia

-iv-

Table of Authorities

Armstrong v. Manzo, 380 U.S. 545, 552 (1965) .......... 7

Bailey v. Bailey, 392 So.2d 49, 52 (3rd DCA 1981) pewardg 27 \

Berlin v. Berlin, 369 So.2d 434,(Fla.App. 3 Dist. 1979) ... 26

Bickett v. Bickett, 579 So. 2d 149 (3° DCA 1991) ....... 27

Blattman v. Williams Island Associates, Ltd., 592 So.2d 269

Pees PO, HOD. su bess bens een aces eedeces 27

Blum v. Blum, 382 So.2d 52 (Fla. 3d DCA 1980) ........ 27

Bob v. Bob, 310 So.2d 328, 330 (Fla. 3d DCA 1975) ..... 28

Cason v. Smith, 365 So.2d 1042 (3 DCA 1978) ........ 26

Childress v. Childress, 309 So.2d 581(Fla.App. 3 Dist. 1975) 26

Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12

Be Tk) a 22-23

Dunstan v. Weatherspoon, 505 So.2d 23 (Fla. 3d DCA 1987) 27

Edwards v. Edwards, 615 So.2d 178 (3% DCA 1993) ..... 28

Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980)

Pe Te eee TEE Per TOT Tee Le ee Pere rls 27

CE OREGON aR Ee Se ee a aa 26

Ginsberg v. Ginsberg, 738 So.2d 1032, footnote 1 (Fla.App. 3

Eee a el Eee ry ee ew 27

-V-

Gomez v. Perez, 409 U.S. 535 (1973) ...........cceees 19

Goral v. State, 553 So. 2d 1282 (3 DCA 1989) ........ 27

Grabow v. Grabow, 442 So.2d 262, 263 (Fla. 3d DCA 1983)

00.0 SS 64-8 wes ce Or ee ee ee ee eee a/

Hazbun v. Rodriguez, 191F.Supp.2d 685 (E.D. Va. 2002) .. 23

Hazbun v. Rodriguez, 200 F.Supp2d 603 (E.D. Va. 2002) .. 23

Henzel v. Golstein, 349 So. 2d 824 (3 DCA 1977) ....... 27

[vans v. Greenbaum, 613 So.2d 130(Fla.App. 3 Dist. 1993) 26

Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980) ...... 24

Kallman v. Kallman, 623 So.2d 1213(Fla.App. 3 Dist. 1993)

Kranis v. Krants, 313 So.2d 135 (Fla.App. 3 Dist. 1975) .. 26

Levy v. Levy, 483 So.2d 455 (3 DCA 1986) ........ 14, 26

Meloan v. Coverdale, 525 So.2d 935 (3 DCA 1988) ..... 28

Meyer v. Nebraska, 262 U.S. 390, 399 (1923) ....... 10, 21

Miami v. Coll, 546 So.2d 775 (3 DCA 1989) .......... 27

M.L. B. v. S. L. J., 519 U.S. 102, 116,(1996) ............ 7

Musachia v. Terry, 140 So.2d 605, 608 (3% DCA 1962) ... 26

Posers v. KI, 407 U3. GIA TID 6 ow od canbe ccasenses 12

Pohlmann v. Pohlmann, 703 So. 2d 1121 (Sth DCA 1997) . 20

-Vi-

P.O.P.S. v. Gardner, 998 F.2d 764 (9" Cir. 1993) ........ 18

Prince v. Massachusetts, 321 U.S. 158, 166 (1944) ... 10,15

Seilkop v. Seilkop, 575 So.2d 269 (Fla. 3d DCA 1991) .... 28

Santosky v. Kramer, 455 U.S. 745, 753 (1982) ......-. 7,10

Scheer v. Scheer, 132 So.2d 456, 458 (3% DCA 1961) .... 26

SeaEscape, Ltd., Inc. v. Maximum Marketing Exposure, Inc., 568

So.2d 952 (Fla.App. 3 Dist. 1990) ..........--+++0ee- 27

Seitz v. Seitz, 471 So.2d 612, 615 (3 DCA 1985) ....... 27

Sol v. Sol, 656 So.2d 206 (3 DCA 1995S) .......--.55: 28

Smith v. Organization of Foster Families for Equality and Reform,

434 01.5. BIG CHOOT). ono ences iceays 845 ee 15

Stanley v. [llinois, 405 U.S. 645 (1972) 2.1... 6-60 eee ees 10

Suarez v. Suarez, 514 So.2d 428, 429 (Fla. 3d DCA 1987) . 27

Tamari v. Turko Tamari, 599 So.2d 680, 681 (3 DCA 1992)

ew cad ben awl sca Lee eee eee 28

Thilem v. Thilem, 662 So.2d 1314 (3 DCA 1995) ....... 28

Thomas v. Feinberg 745 So.2d 500, 501 (3rd DCA 1999) .. 26

Velez v. The City of Coral Gables, 819 So.2d 895 (Fla.App. 3 Dist.

MED pn nccecabeaeweaud seeks pyee S65 e660 eee eee 25

Vereen v. Spears, Case No.: 3D02-1476 (3 DCA 2002) ... 28

Waldman v. Waldman, 520 So. 2d 87, n.4 (3 DCA 1988) . 26

-Vil-

Weber v. Aetna Casualty & Surety Co., 406 U.S. 164, 175 (1972)

eT eT ee eee PUT ETE TER Eee CeCe Tee ers 19

Other Authorities

U.S. Constitution, 14 Amendment, Section 1 .. . 6-21, 23-30

U.S. Constitution, Article, VI, Clause 2 ............... 22

Florida Statute, §61.16 ................ cc cece eeee 14

Florida Statute §61.30(12) ...................... 18-21

| PETITION FOR WRIT OF CERTIORARI TO THE

FLORIDA THIRD DISTRICT COURT OF APPEAL

Petitioner, Montgomery Blair Sibley (“Father”), prays

that a writ of certiorari issue to review the judgment and opinion

of the Florida Third District Court of Appeal entered on

December 3, 2003, as review by the Florida Supreme Court is

prohibited by the Florida Rules of Appellate Procedure as

detailed in Point VI, supra.

OPINIONS BELOW

The May 14, 1998, order permitting Father to relocate

from Florida with his minor children of the Florida Circuit Court

in and for Miami-Dade County, Florida is reprinted in the

appendix hereto, Appendix-4.

The December 10, 2001, order temporarily changing

primary physical custody of the minor children from Father to

Respondent, Barbara Sibley (“Mother”) and prohibiting the

removal of the minor children to Washington, D.C. of the Florida

Circuit Court in and for Miami-Dade County, Florida is reprinted

in the appendix hereto, Appendix-6.

The March 27, 2002, decision of the Florida Third

District Court of Appeal is reprinted in the appendix hereto,

Appendix- 13.

The August 5, 2002, orders on child support of the

Florida Circuit Court in and for Miami-Dade County, Florida are

reprinted in the appendix hereto, Appendix-15 and 23.

The August 9, 2002, order terminating Father's rights in

his minor children of the Florida Circuit Court in and for Miami-

Dade County, Florida is reprinted in the appendix hereto,

Appendix-28.

—

.%

The December 3, 2003, order denying per curiam without

written decision of the Florida Third District Court of Appeal is

reprinted in the appendix hereto, Appendix-35.

The February 12, 2004, opinion of the Florida Third

District Court of Appeal denying Father’s motion for rehearing,

rehearing en banc, reconsideration and for a written decision is

reprinted in the appendix hereto, Appendix-40.

JURISDICTION

The order of the Florida Third District Court of Appeal

was entered on December 3, 2003, affirming, without opinion

and per curiam, the interlocutory and final orders of the Florida

Family Court in Sibley v. Sibley, Case No.: 94-18177 FC. The

order of the Florida Third District Court of Appeal denying

Father's motion for rehearing, rehearing en banc, reconsideration

and for a written decision was entered on February 12, 2004.

The jurisdiction of this Court is invoked under 28 U.S.C. §1257.

CONSTITUTIONAL PROVISIONS, TREATIES,

STATUTES, ORDINANCES AND REGULATIONS

INVOLVED

(Set-out in Appendix)

U.S. Constitution, 14" Amendment, Section |

U.S. Constitution, Article, VI, Clause 2

Florida Statute, §61.16

Florida Statute, §61.30(12)

x, *

STATEMENT OF THE CASE

In September 1994, Father and Respondent (“Mother”)

were divorced in the State of Florida. Father was designated the

“primary residential custodian” of the three minor children of

that marriage and after the division of property neither paid nor

received child support or alimony. For the ensuing six years

from 1994 to September 2000 Father, while living in Florida,

remained the “primary residential custodian” of the three

children and at all times was a nurturing father against whom no

complaint was lodged.

In 1996, Father re-married and a child of that marriage

was born in December 1997. In 1998, anticipating a relocation

to the Washington, D.C. area, Father received an order from the

Florida Family Court permitting such a relocation upon the sole

condition of 45-day prior notice to Mother upon whom was

placed the burden of securing a change in custody. Appendix-4.

[n the spring of 2000, pursuant to the 1998 order, Father

provided notice to Mother of his intent to relocate to the District

of Columbia area with the minor children.

In flagrant disregard of his custody rights and in violation

of the relevant court orders on custody and visitation, Mother

refused to return the children to Father in July 2000 at the

conclusion of their court-ordered summer vacation with her.

{nstead, Mother moved for a temporary change in custody in the

Florida Family Court on July 27, 2000, solely upon the grounds

that Father had abandoned the children. Significantly, Mother

received no order permitting her to refuse to return the minor

children to Father. Father vigorously sought an immediate

hearing on her refusal to return the children to him from the

Florida Family Court but that Court refused to conduct such a

hearing. By such refusal, that court de facto transferred custody

without the requisite procedureal or substantive due process

safeguards of notice and an opportunity to be heard. Father's

-4-

repeated petitions for mandamus to the Florida Third District

Court .of Appeal to require a hearing and expedited

determination of the custody issue were denied.

Seventeen months later, after hearings commenced in

October 2000 and continued to December 2000, September

2001 and October 2001, the Florida Family Court finally entered

on December 10, 2001, verbatim the proposed order submitted

by Mother temporarily changing custody to Mother and -

without notice that such relief was requested or being

considered by the Court or permitting Father to be heard —-

prohibiting Father from seeing his children stating: “No

visitation shall take place between the Former Husband and the

minor children until therapy takes place”. Appendix-11. Father

has not been permitted to see his children since that time and in

the interim two of the three children have reached the age of

majority.

Father appealed the order on temporary custody to the

Florida Third District Court of Appeal which rendered its

decision based solely upon the lack of a proper record refusing

to Father a hearing on his Florida Statutory right to have Mother

bear the cost of the record on appeal. Appendwc- 13.

Twenty months later, traveling upon Mother's motion for

sole parental responsibility, on August 5, 2002, Mother’s motion

to change custody and strip Father of all his parental rights was

finally determined by the Florida Family Court, which refused to

recognize or enforce Father’s rights in his minor children.

Additionally, again adopting verbatim Mother’s counsel's

proposed orders on child support and notwithstanding both the

needs of Father’s son born of his second marriage and Father's

current economic condition ($36,000/year; negative net worth)

and that of his former wife ($250,000/year; $1,000,000+ net

worth) — the Florida Family Court ordered that Father pay to his

former wife $100,000 in arrearages of child support calculated

at $4,000 per month from July 2000, $4,000/month going

~

iS

forward plus tuition to private schools and college for the three

children in the amount of $175,000 for a total of $275,000.

Appendix 15 and 23.

Father, on August 27, 2002, appealed twenty-one

interlocutory orders and the August 2002 final orders of the

Florida Family Court to the Third District Court of Appeal. After

refusing to Father his request for leave to file a brief 20 pages in

excess of the brief limitation — and thereby precluding Father

from raising certain issues on appeal — oral argument on the

appeal was finally held over a year later on October 8, 2003.

Initially granting Father’s motion to expedite the appeal, sixty

days after oral argument on October 8, 2003, Father moved for

an expedited decision which motion was filed on December 2,

2003. Noteworthy, the following day, in a per curiam decision

without written opinion, the Florida Third District Court of

Appeal affirmed all of the orders entered by the Florida Family

Court. Appendix-40.

To show that the this Court has jurisdiction to review the

judgements below on a writ of certiorari as required by Rule

14(g)(i) by Father's timely and properly raising the federal

questions sought to be reviewed, Father states that each federal

question sought to be reviewed was raised at the trial level in the

first instance and subsequently at the appellate court level, save

for Point VI which was raised and only could have been raised

at the appellate level. Given the voluminous nature of the

record, the method or manner of raising these federal questions

and the way in which they were passed on by those courts with

a summary of the pertinent quotations of specific portions of the

record with specific reference to the places in the record where

the matter appears are included in the Appendix hereto.

_

-6-

REASONS FOR GRANTING THE WRIT

There are six compelling reason for granting this writ.

First, the Florida Third District Court of Appeal-approved

procedure for stripping Father of the custody of his minor

children and terminating all Father's parental rights violated

procedural due process as detailed below. Second, the Florida

Third District Court of Appeal-approved required eviierice for

stripping Father of the custody of his minor children and

terminating all Father’s parental rights violated substantive due

process guarantees as detailed below. Third, Florida Statute

§61.30(12) violates equal protection guarantees by denying to

Father’s child of his second marriage equal support from Father.

Fourth, setting Father's child support obligations at a level which

bears no relationship to his ability to pay is arbitrary or without

reasonable relation to some purpose within the competency of

the state to effect. Fifth, Father (i) was improperly prohibited by

the Florida State Court judge from suing in federal court and (ii)

was improperly sanctioned for failing to appear in state court

when he was under federal subpoena to appear in federal court

at the same time in a different state. Sixth, the Florida Third

District Court of Appeal procedure of issuing opinions per curtam

without written decisions violates Father's equal protection

rights.

[. The Florida Family Court Proceedings

Violated Father’s Procedural Due Process

Guarantees

The course of the proceedings below from the timing of

the setting of hearings to the entry of the final orders by Judge

Lando — and orders not entered by Judge Lando - singularly and

collectively establish a denial of procedural due process to

Father in this termination of fundamental parental rights case.

A. Delay in Conducting Change in Custody

Proceedings Violated Due Process

mA

Mother’s Emergency Motion to Temporarily Transfer

custody of the minor children to her was filed on July 27, 2000.

Judge Lando did not conclude the hearing on this “emergency”

and “temporary” motion until October 8, 2001, some 430 days

later. Indeed, it was not until October 8, 2001, that Judge

Lando finally permitted Father to present his case to her.

Moreover, Judge Lando did not enter her order on this motion

until December 12, 2001, over 500 days after the filing of the

original “Emergency” motion. Furthermore, Mother's Petition For

Modification of Primary Physical Residence and_ Sole

Responsibility filed on July 19, 2001, was not resolved until

August 9, 2002, some 386 days later.

The Due Process guarantee of a hearing at a “meaningful

time” and (i) a 500 day delay in resolving an “emergency

motion” and (ii) a 386 day delay in resolving a custody motion,

are simply irreconcilable. The delay is particularly grotesque

when the minor children are removed from Father — the primary

residential custodian during that time — based solely upon (i) the

subsequently demonstrated spurious allegation of the

“emergency” motion and (ii) placed with a parent — who the

Guardian ad litem recognized — as failing “to properly encourage

the love and support of the children for their father. [Mother]’s

failings could be construed as having an alienating effect on the

children. {Mother] should be counseled with respect to her

obligation in this regard and follow up should be structured to

make sure that she adjusts her behavior accordingly.” ~

This Court has recognized a “fundamental liberty interest

of natural parents in the care, custody, and management of their

child.” Santosky v. Kramer, 455 U.S. 745, 753 (1982). “Choices

about marriage, family life, and the upbringing of children are

among associational rights (the Supreme] Court has ranked as

‘of basic importance in our society,’ . . .. rights sheltered by the

Fourteenth Amendment against the State's unwarranted

usurpation, disregard, or disrespect.” M. L. B. v. S. L. J., 519

U.S. 102, 116 (1996) (internal citation omitted).

«8.

As a general rule, therefore, before parents may be

deprived of the care, custody or management of their children

without their consent, due process — ordinarily a court

proceeding resulting in an order permitting removal — must be

accorded to them. See Stanley, 405 U.S. at 649, 651. A parent

may not lawfully be deprived of the custody of his or her child

without a hearing “at a meaningful time and in a meaningful

manner.” Armstrong v. Manzo, 380 U.S. 545, 552 (1965).

Here, Father was stripped by Judge Lando of his custody,

relationship and management of his minor children without any

meaningful hearing for over 500 days through the use of

discretion in controlling her hearing calendar. Crucial too is that

this is not a situation where the minor children have been

removed on an emergency basis — indeed no complaint has ever

been registered regarding these minor children and Father's

primary residential custodian care of them during the six years

he acted in that capacity. Contrariwise, this action arises upon

the mother’s spurious “Emergency” motion to transfer custody

and Father’s emergency motion to compel Judge Lando to

enforce her own orders vesting custody in Father.

Instead of recognizing the clear rights Father had as

primary residential custodian, Judge Lando failed to hear any

part of Father’s side for over 430 days but allowed a de facto

modification of custody to continue for 15 months exclusively

with Mother — who was objectively demonstrated by the

Guardian ad litem to be dedicated to disaffecting Father’s

children from him — an objective she subsequently accomplished.

Plainly, procedural due process requires more than delaying a

hearing on an emergency petition for modification of custody for

15 months yet de facto granting that petition during that

interval.

B. Judge Lando Improperly Limited Father’s

Presentation of Evidence

9.

When Father was finally permitted to present evidence

in opposition to Mother’s Emergency Motion for Temporary

Custody 438 days after that motion had been filed, Judge Lando

expressly limited Father's ability to present his case by her

directions. In particular, Judge Lando instructed Father at the

beginning of his case-in-chief on October 8, 2001: “Only thing I

would ask is try not to be repetitious with regard to testimony

that I have already heard. . . . [ have directed you not to repeat, —

and that is my ruling.” And indeed, Judge Lando repeatedly

instructed — caustically and with sarcasm - Father to stop his

testimony as she had already heard it. Moreover, time and again

during these proceedings, Judge Lando silenced Father and

denied him the ability even to proffer his objections to preserve

them for appellate review.

C. Judge Lando’ Abdicated Her

Responsibility By Her Verbatim Entry of

the Proposed Orders from Mother’s

Counsel

Of all that is appalling in this case, none equals the fact

that both (i) the December 12, 2001, order of Judge Lando on

Mother’s Emergency Motion for Temporary Custody and (ii) the

August 2002 orders on Contempt were the verbatim adoptions

by Judge Lando of the proposed orders submitted by Mother's

counsel upon which Father did not have an opportunity to

comment prior to entry. As such, they must be reviewed as

Judge Lando patently abandoned her pivotal rule as an

“impartial judge” in this matter.

D. Judge Lando’s Termination of Father’s

Parental Rights Violated Father’s

Fundamental and Due Process Rights

The de jure and de factor termination of Father's parental

rights contained in the December 12, 2001, order violated

Father’s fundamental and procedural due process rights.

a a

-10-

That order, at paragraph 4 states, “No visitation shall

take place between the Former Husband and the minor children

until therapy takes place.” Appendix-11. Of great moment is that

Mother’s Emergency Motion for Temporary Custody did not

contain any request for such relief — i.e. che de facto and de jure

indefinite suspension of Father's rights in his minor children.

Hence, and first, this order is defective as Father’s

parental rights were terminated without notice to him that

Judge Lando was considering such a course or an opportunity to

be heard and present evidence (such as his own psychologist) on

the issue of whether for some unknown reason, Father had

become so unfit as a parent that termination of all contact with

his children and counseling was necessary.

Second, there was no proof to justify this order by Judge

Lando and strikingly the proof was just the opposite. The

guardian ad litem concluded in his December 15, 2000, report to

Judge Lando that:

Both [Father] and [Mother] are very bights (sic),

articulate, caring an compassionate individuals.

Both have substantially contributed to their

children’s welfare. .. . Both parents are adequate

and competent and if anything happened to

either parent, this Guardian would have not (sic)

hesitancy in recommending to the Court that the

other parent assume full responsibility over the

children.

As no extreme circumstances were (i) plead, (ii) proved or (iii)

placed in the December 12, 2001, order by Judge Lando the

termination of Father’s parental rights violated Father's due

process and fundamental rights as a parent.

This Court has held that when the state seeks to change

or affect the relationship of parent and child in furtherance of a

A.

legitimate state interest, a Fourteenth Amendment liberty

interest is implicated and the state should adhere to rigorous

procedural safeguards. Santosky v. Kramer, 455 U.S. 745 (1982)

(involving termination of parental rights); Stanley v. [llinois, 405

U.S. 645 (1972) (determining custody rights of unwed father).

Accord: Prince v. Massachusetts, 321 U.S. 158, 166 (1944) (the

custody, care and nurture of the child reside first with the

parents); Meyer v. Nebraska, 262 U.S. 390, 399 (1923) (liberty

guaranteed by the Fourteenth Amendment includes the right to

establish a home and bring up children).

Such safeguards were grotesquely absent here.

E. Lack of Notice to Father of the Expansion

of the Hearings Beyond the July 27, 2000

Allegations Violated Father’s Due Process

Rights

Father was denied procedural due process by Judge

Lando’s conduct of the hearing on Mother’s Emergency Motion

to Transfer Custody by having no notice of the expanded scope

of the hearing prior to the continuation of the December 15,

2000, hearing 283 days later on September 24, 2001. As such,

Father was not able to prepare adequately so that he could have

a meaning opportunity to be heard. The factual allegations in

support of Mother’s July 27, 2000, Emergency Motion for

Temporary Custody are specifically limited to allegations

concerning Father’s alleged “abandonment” behavior that

occurred between May 2000 and July 27, 2000. Plainly,

Mother’s Emergency Motion for Temporary Custody could not

make allegations about Father’s future behavior. Moreover, at

the initial hearing on this motion held on October 24, 2000,

Mother’s counsel’s opening statement limited the proof of

Father’s behavior justifying a change in custody to the period

May 2000 through July 2000. Hence, Father prepared and

presented his case based upon this express limitation on the

factual basis for the change in temporary custody.

A EEE OTE —

a

$2.

Indeed, at both the October 24, 2000, and the December

15, 2000, hearings, the direct examination of Father by Mother

covered only the area that could be covered, i.e., whether he

“physically, financially and emotionally” abandoned the minor

children from May 2000 until July 27, 2000 as alleged by

Mother. As such, Father was clearly expecting the proof to be

limited to that which was alleged in the only pleading at issue —

Mother’s Emergency Motion for Temporary Custody which was

limited to events occurring in the summer of 2000.

Nonetheless, Judge Lando at the continuation of the

hearing on Mother’s Emergency Motion for Temporary Custody

on September 24, 2001 — without notice to Father and over

Father’s express objections to this expansion of the scope of the

hearings beyond the boundaries of the pleadings — allowed

Mother to delve into the issues that occurred not only between

May 2000 and July 27, 2000, but up until the hearing on

September 24, 2001.

As such, Father, on notice for a trial concerning issues

that occurred during the summer of 2000, all of a sudden found

himself confronted with a trial on the un-noticed issues frem

summer 2000 to the fall of 2001. Indeed, Judge Lando’s

expansion of the scope of the hearing on September 24, 2001,

is plainly evidenced at paragraph “K” of the December 12, 2001,

order wherein Judge Lando makes findings regarding the

Christmas 2000 visitation by the minor children to Father in

Maryland. (Appendix-8).

Thus, Father found himself on September 24, 2001, on

the stand answering questions — and unprepared to do so -

about topics he was given no notice were to be the subject of the

inquiry or serve as a basis to take his chilcren from him. Such

practice violates fundamental procedureal due _ process

guarantees.

-|3-

F. Judge Lando Utilized Stale Evidence

Which Caused Her To Mis-Recollect the

Testimony

In the December 12, 2001, order, Judge Lando, held that

“All testimony taken in this hearing shall be adopted and made

a part of the hearing on the Former Wife’s Petition for

Modification of Primary Physical Residence”. (Appendix-11).

Hence, when the hearings continued on the remaining motions

on June 1, 2002, Judge Lando incorporated by reference the

testimony she heard given under different motions and petitions

to matters she was hearing as much as 654 days after the

testimony was first given. Father objected to this procedure.

G. The Bias of Judge Lando Against Father

Violated Father’s Due Process Rights

The repeated real bias —- or even if only apparent — of

Judge Lando against Father is plain and violated Father's right

to an “impartial tribunal” to determine his fundamental rights in

his children. In Peters v. Kiff, 407 U.S. 493 (1972) this Court

stated, “Moreover, even if there is no showing of actual bias in

the tribunal, this Court has held that due process is denied

by circumstances that create the likelihood or the appearance

of bias.”

Here those circumstances are documented in the six

motions to disqualify Judge Lando which singularly and

cumulatively demonstrated Judge Lando’s bias against Father in

this most sensitive of issues — the custody of his children and

include:

- Judge Lando was exposed to privileged

communications between the parties and repeatedly used them

in determining this case;

2. Judge Lando refused to allow Father to be

heard before ruling;

x I Judge Lando (i) engaged in ex parte

communications with Mother's counsel, (ii) entertained an ore

tenus motion for contempt which had not been noticed for

hearing, (iii) ruled on that motion for contempt without

permitting the Father to be heard in opposition and (iv) all

during a hearing without a stenographer in violation of Florida

Rules of Judicial Administration, Rule 2.070(b) +(d) and over

the express objections of Father;

4. Judge Lando again refused to allow Father

to be heard before sanctioning him for failing to produce his

second wife’s pay-stubs — when those documents were not within

his custody or control as he had legally separated from his

second wife and thus had no access to her pay-stubs under

Maryland law ;

8 Judge Lando’s favoring of Mother over

Father in the setting of hearings. Thus, though Father made

pursuant to Fla. Stat. 61.16 a “Motion for Attorney Fees” on

October 31, 2001, Judge Lando refused to set - and indeed

never did set — a hearing. However, when Mother made the

same motion on July 2, 2002, Judge Lando set the hearing date

51 days later on August 27, 2002.

6. Judge Lando entered verbatim,” the

proposed order of Mother on this very sensitive issue of custody

and support which resulted in Father's incarceration for seventy-

five days.

Most egregiously, and alone violating due process rights,

at the hearing continued to October 8, 2001, during Father's

direct testimony, Judge Lando not only made a sarcastic remark

directed to Father, she subsequently admitted to this onerous

and unethical behavior on the record. Judge Lando, by belittling

Father through sarcasm, denied to Father a fair hearing and as

i&.,

such due process rights were not accorded Father.

H. Florida Public Policy Requires Attorney

Fees and Costs To Be Borne By Mother

Florida Statute, §61.16 — “Attorney's fees, suit money,

and costs” states in pertinent part:

(1) The court may from time to time, after

considering the financial resources of both

parties, order a party to pay a reasonable amount

for attorney's fees, suit money, and the cost to

the other party of maintaining or defending any

proceeding under this chapter, including

enforcement and modification proceedings and

appeals.

In Levy v. Levy, 483 So.2d 455 (3 DCA 1986), the Florida Third

District Court of Appeal stated “{[O]ne of the underlying

principles upon which fees-are allowed at all in domestic cases,

that is, to equalize the otherwise disparate financial abilities of

the respective spouses to retain counsel.”

Father initially sought pendente lite appellate attorney

fees and costs from Judge Lando by motion dated October 31,

2001. Judge Lando, through her administrative assistant,

advised Father that Judge Lando would not consider such

matters before August 2002 - well after the subject appeal

would have been decided. Moreover and significantly, though

asked to do so, Judge Lando in December 2001 refused to enter

a submitted agreed-by-counsel-as-to-form order stating her

intention to not consider the matter of attorney fees and costs

until August 2002. To date, though August 2002 has come and

gone, Judge Lando has refused to consider this October 29,

2001, motion for pendente lite attorney fees and costs.

On September 9, 2002, Father again moved for pendente

-16-

lite appellate attorney fees and costs before Judge Lando. Again,

Judge Lando refused to set this motion for hearing and has not

otherwise ruled upon it. The law under Florida Statute, §61.16

and the lack of hearing by both Judge Lando and this Court on

the issue of attorney fees and costs has forced Father to

represent himself in violation of the plain public policy of the

State of Florida. As such, the entire proceeding is in error and

must be reviewed for that reason alone.

II. The Florida Family Court Proceedings

Violated Father’s Substantive Due

Process Guarantees

As Mr. Justice Stewart, with whom Mr. Justice Rehnquist

joined, concurring in Smith v. Organization of Foster Families for

Equality and Reform, 431 U.S. 816 (1997), stated, “One of the

liberties protected by the Due Process Clause, the Court has held,

is the freedom to ‘establish a home and bring up children.’

Meyer v. Nebraska, supra, 262 U.S., at 399. If a State were to

attempt to force the breakup of a natural family, over the

objections of the parents and their children, without some

showing of unfitness and for the sole reason that to do so was

thought to be in the children's best interest, | should have little

doubt that the State would have intruded impermissibly on ‘the

private realm of family life which the state cannot enter.’ Prince

v. Massachusetts, 321 U.S. 158, 166, 64 S.Ct. 438, 88 L.Ed. 645.”

Here, the pleadings and the substantive proof relied upon

by the Family Court to break-up Father's relationship with his

children was “without some showing of unfitness and for the

sole reason that to do so was thought to be in the children's best

interest” and accordingly “intruded impermissibly” on the private

realm of family life which “the state cannot enter”. As such,

Father’s fundamental liberty interest of Due Process was violated

by the termination of his rights in his children.

First, as to the pleadings, on October 8, 2001, at the

eB

conclusion of Mother's direct case on her Motion for Temporary

Custody, Father made a motion for directed verdict. That

motion was based upon Mother’s fantastic admissions during

cross-examination by Father that (i) Father did not financially

abandon the minor children, (ii) Father did not physically

abandon the minor children and (iii) did not emotionally

abandon the minor children all in direct contradiction of the

allegations of Mother’s Emergency Motion for Temporary

Custody.

Mother’s subsequent Petition for Modification of Primary

Physical Residence and Sole Responsibility is likewise devoid of

any pleading supporting a finding of “significant inadequacy” by

Father in the care of the minor children. To the extent that

pleading alleges alienation by the Father from his children, it

must be noted that (i) Father was under a court order not to

have any contact with the minor children since December 2001

and (ii) Judge Lando refused to issue any order of visitation for

over 500 days by not ruling on Father’s motion modify the

visitation schedule until after she had ordered Father not to have

any contact with his children.

The primary allegation upon which the petition for sole

responsibility is based on Father’s alleged failure to pay child

support — an improper basis in all events to justify a change in

primary physical residence or parental responsibility. Thus the

non-financial allegations relied upon by Mother as grounds for

modification when reviewed simply do not add up to facts

sufficient to justify a change in custody and awarding sole

parental responsibility to Mother. As such, the change in

custody violated Father’s Due Process and Equal Protection

guarantees and his fundamental rights as a parent.

Second, ignoring the procedural defects in the pleadings

described above, the orders themselves and the factual record do

not permit the legal conclusion changing the residential

custodianship of the minor children from Father. Neither the

-18-

order of December 12, 2001, nor the order of August 9, 2002,

were supported by the record below and accordingly were

wholly deficient and inadequate to support a change in primary

residential custody and termination of Father’s parental rights.

Indeed, both orders (i) fail to make the requisite findings of

Florida Statute §61.13, (ii) only make findings of fact in a

conclusory manner, -and (iii) ignore the favorable evidence

below to Father and against Mother. Moreover, when Judge

Lando does make specific findings of fact — parroting the

proposed order of Mother’s counsel - the findings are simply

contrary to the evidence. As such, there was no “showing” to

Sustain a finding that Father was “unfit” to continue as primary

residential custodian.

This Court must review in their entirety the hearings held

on October 24, 2000, December 15, 2000, September 24, 25, 26,

2001, October 8, 2001, June 4, 5, 6, 7 and July 1, 2001 in

support of Mother’s motions to transfer custody to try to find

substantial and competent evidence to “show” Father’s

“unfitness” to be a parent. Father is left trying to prove here the

negative — which is like swatting at unseen sand flies and simply

cannot be done.

Il. Father’s Support Obligation Offends Equal

Protection

The net result of continued enforcement of the Marital

Settlement Agreement as Judge Lando did by her orders of

support of August 9, 2002, is that the three children of Father’s

first marriage will benefit disproportionately greater than

Father’s child from his second marriage. Indeed, given the

practical effect of that order — to destitute Father and leave

nothing for his support of his son from a subsequent marriage —

such a result is noxious to the sentiments of Equal Protection

and thus Florida Statute §61.30(12) and the orders of support

cannot be sustained under constitutional principals.

-19-

Only one other federal court has addressed the issue of

equal protection and state statutes setting child support

obligations. In P.O.P.S. v. Gardner, 998 F.2d 764 (9" Cir. 1993),

the court affirmed a dismissal of a constitutional challenge to a

Washington state child support schedule which — similar to

Florida’s scheme found at §61.30(12) — excluded subsequently

born chitdren of other relationships in determining the level of

child support to be ordered. Id. at 769. In upholding the

constitutionality of the child support schedule against an equal

protection challenge, the Ninth Circuit held that the “schedule

does not directly and substantially interfere with fundamental

rights”. [d. at 770. However, unlike Florida Statute §61.30(12),

the Washington State schedule expressly required the courts to

consider and if necessary deviate from the schedule if children

from other relationships were present. Id. at 769.

Notably, Florida does not permit such a deviation,

expressly prohibiting such consideration at §61.30(12)(c): “The

issue of subsequent children under paragraph (a) or paragraph

(b) may only be raised in a proceeding for an upward

modification of an existing award and may not be applied to

justify a decrease in an existing award.” (Emphasis added).

This Court must look to a directly analogous

determination of equal protection guarantees found at Gomez v.

Perez, 409 U.S. 535 (1973). There, this Court addressed the

issue of “whether the laws of Texas may constitutionally grant

legitimate children a judicially enforceable right to support from

their natural fathers and at the same time deny that right to-

illegitimate children.” Id. at 535. This Court first found that

“the controlling law is the Texas common-law rule that

illegitimate children, unlike legitimate children, have no legal

right to support from their fathers.” [d. at 536-537. In striking

down the quoted law of Texas, this Court held:

Under these decisions, a State may not

invidiously discriminate against illegitimate

-20-

children by denying them substantial benefits

accorded children generally. We therefore hold

that once a State posits a judiciaily enforceable

right on behalf of children to reeded support

from their natural fathers there is no

constitutionally sufficient justification for

denying such an essential right to a child simply

because its natural father has not married its

mother. For a State to do so is “illogical and

unjust.” Id., at 175, 92 S.Ct., at 1406.

Id. at 537-538.

Here, Florida has established a statutory right for

children of a first marriage to needed support but explicitly has

denied children — whose only crime was to be subsequently born

of a different parent — the same right to needed support. For

Florida to do this is “illogical and unjust” if only because if

Father's child of the subsequent marriage had been born out-of-

wedlock, Gomez would have precluded the disparate treatment

§61.30(12) sets. The subsequently born child certainly does not

need less food than the prior children. But that is plainly what

the State of Florida mandates. In Weber v. Aetna Casualty &

Surety Co., 406 U.S. 164, 175 (1972) this Court noted “the basic

concept of our system [is] that legal burdens should bear some

relationship to individual responsibility or wrongdoing.

Obviously, no child is responsible for his birth and penalizing the

illegitimate child is an ineffectual—as well as unjust—way of

deterring the parent.” Here, it is the child born of a second

marriage that is being penalized the same way an illegitimate

child was being penalized in Weber.

In Pohlmann v. Pohlmann, 703 So. 2d 1121 (Sth DCA

1997) the only Florida case which has addressed and upheld this

issue of the constitutionality of §61.30(12), in his well-worded

dissent, Judge Harris stated “The issue in this case, quite simply,

is whether it is a “legitimate government interest" for the State,

aa

through its legislative process, to prefer certain children over

others. Because | believe that it is not, | would hold §61.30(12),

Florida Statutes, unconstitutional under the provisions of Article

I, § 2, of the Florida Constitution.”

This Court must note that Father's child of his second

marriage sought to raise the constitutionality of Florida Statute

§61.30(12), through a declaratory judgment action filed in the

U.S. District Court of the Southern District of Florida. That court

dismissed the action upon the Rooker-Feldman and Younger

doctrines. The Eleventh Circuit Court of Appeals, in an un-

published opinion, in Sibley v. Lando, Case No. 03-14915

affirmed the dismissal stating “We conclude that the Younger

doctrine required the district court to abstain for the reasons the

court expressed in its September 23 order. . . We find no abuse

of discretion; an amendment would be futile.” Appendix-43. As

such, this Court must accept certiorari to determine the

constitutionality of §61.30(12) as no other forum exists to

address this statute which so significantly impinges upon the

right to support of children born of subsequent marriages.

IV. Father’s Support Obligations Violate Due

Process

Father maintains that there is a constitutional limitation

upon the level of child support that a state can order a Father to

pay — and incarcerate when such payment is not forthcoming as

happened here — when such amount bears no relationship to

Father’s assets and ability to pay such amounts and directly

effects his ability to raise his children. “While this court has not

attempted to define with exactness the liberty thus guarar.teed,

the term has received much consideration and some of the

included things have been definitely stated. Without doubt, [Due

Process] denotes not merely freedom from bodily restraint but

also the right of the individual to . . . establish a home and bring

up children. . . . The established doctrine is that this liberty may

not be interfered with, under the guise of protecting the public

Be

interest, by legislative action which is arbitrary or without

reasonable relation to some purpose within the competency of

the state to effect.” Meyer v. State of Nebraska, 262 U.S. 390,399

(1923).

Here, on August 4, 2001, Father filed his Supplemental

Petition for Modification of Child Support alleging a “substantial

change in circumstances not contemplated at the time of the

Final Judgment which was sufficient, material, involuntary and

permanent in nature, requiring a modification of {Father]’s child

support obligations”. In the Orders on Support entered a year

later on August 9, 2003, Judge Lando ignored the Florida

statutory support guidelines and instead ordered Father to pay

(i) $4,000/month from July 2000 to Mother fr child support as

required under the 1994 Martial Settlement Agreement and (ii)

all private educational expenses of the chiidren — a sum which

now exceeds $400,000. This, Father is suppose to do on his

income recognized by Judge Lando of $26,000/year.' This issue

was raised, and review was denied, by this Court in Case

Number 03-682.

Thus setting child support obligations at an absurd

amount is “arbitrary or without reasonabie relation to some

purpose” and has denied to Father the du¢ process right to raise

his children. Instead, stripped of that right, the children’s

~mother now makes the sole determination of what scnools they

are to attend ana Father must pay that amount regardless of his

wishes. Such a reswli does not comport with Substantive Due

While recognizing Father’s inability to pay, the Florida

Third District Court of Appeal substituted a legal fiction that

Father’s could compel his father, Harper Sibley, Jr., to pay

Father’s child support and educational obligatioas. Noteworthy

is that when Father sought to enforce this “right to compel” by

suit against Harper Sibley, Jr., the Florida Family Court denied

him the right to do so.

a.

Process guarantees as the State has stripped Father of his

fundamental right to raise his children through the punitive

imposition of absurd child support obligations.

V. Father was Improperly Prohibited From Suing

in Other Courts and Was Improperly Sanctioned

On May 29, 2001, Judge Platzer for Judge Lando entered

an ex-parte order which, among other holdings, enjoined Father

from “litigating issues with respect to the trust and the payment

of fees and costs from the trust assets in any forum other than

the 11" Judicial Circuit in and for Miami-Dade County, Florida”.

Plainly, such an order has no legal justification and is

particularly onerous as the Children’s Trusts are a product of the

New York Surrogate Court from where they arose and over

which that Court — and not Judge Lando sitting in the 11"

Judicial Circuit in and for Miami-Dade County, Florida — has

unquestionable jurisdiction. Subsequently, on February 11,

2003, Judge Lando entered an-order which at 46 stated “The

[Appellant here] is ordered to not commence new legal

proceedings in any other forum against [the former wife].”

Indeed, such orders violate this Court’s express nolding

in Donovan v. City of Dallas, 377 U.S. 408, 84 S.Ct. 1579, 12

L.Ed.2d 409 (1964), “That right [to federal court access] was

granted by Congress and cannot be taken away by the State. The

Texas courts were without power to take away this federal right

by contempt proceedings or otherwise.”

Significantly, Father sought a declaratory judgement that

Judge Lando’s February 1!, 2003, order violated his rights as

recognized in Donovan v. City of Dallas. The Eleventh Circuit

ruled on March 8, 2004, in Sibley v. Lando, 03-13340, that

Father’s remedy was a state court appeal of the February 11,

2003, order “and then, if he is unhappy with the result, to

continue his appeal on to the United States Supreme Court. .

We conclude this claim was improperly brought by [Father] in

-24-

federal district court . . . because the Rooker-Feldman doctrine

bars this action in federal court.” Hence, Father’s only remedy

to enforce his rights recognized in Donovan v. City of Dallas is

this instant petition.

Additionally, pursuant to a federal subpoena properly

issued and served upon Father on April 15, 2002, Father was

required to appear and testify in a trial in the Eastern District of

Virginia on April 25, 2002. On April 25, 2002, Fathet appeared

as subpoenaed and testified as noted Hazbun v. Rodriguez,

191F.Supp.2d 685 (E.D. Va. 2002) and Hazbun v. Rodriguez, 200

F.Supp2d 603 (E.D. Va. 2002). The matter was continued by

that court to April 26, 2002, and Father was instructed to remain

available if further testimony was necessary from him. The trial

concluded before that court in the afternoon of April 26, 2002.

On the same day — April 26, 2602 -— Judge Lando

conducted a hearing on one day’s notice to Father, and

sanctioned Father for failing to appear. Father, who did not

have notice of the hearing, could not attend the April 26 hearing

in Miami as he was under federal subpoena to appear and was

appearing in Virginia at that time. Hence, the order sanctioning

Father for not appearing for the hearing on April 26, 2002,

violated the supremacy clause and must be reviewed by this

Court.

VI. The Florida Supreme Court and the Third

District Court of Appeal Violated Father’s Equal

Protection Right

This Court must accept certiorari of the questions

presented below as (i) Florida Supreme Court review is

prohibited by Jenkins v. State, 385 So.2d 1356, 1359 (Fla. 1980)

and (ii) Federal Court review has been denied as detailed in 03-

1205 pending before this Court on the grounds that the Rooker-

Feldman and Younger doctrines preclude Federal Court review of

these issues. Appendix-35. Accordingly, a denial of review here

oe hd

- i>

denies to Father a substantive review in any court of his

allegations of constitutional violations by the rules of procedure

of the Florida Supreme Court and practice of the Third District

Court of Appeal as documented below.

A. The Per Curiam Affirmance Violates

Equal Protection By Denying Florida

Supreme Court Review of Florida District

Courts of Appeal Conflicts

By entering a per curiam affirmance without written

opinion, the Third District Court of Appeal violated Father’s

Equal Protection guarantees as Father was treated differently

than similarly situated litigants in other cases without

explanation of the disparate treatment. Moreover, pursuant to

Florida Supreme Court rule such a practice of denying a written

decision arbitrarily creates two classes of appellants in Florida:

(i) those who get a written opinion thereby creating a right to

Florida Supreme Court conflict-review and (ii) those who do not

get a written opinion thereby creating an un-reviewable and

separate body of law which conflicts with the express rulings of

the Federal and Florida Courts and thus denies equal protection

of the laws.

This rule and practice violates equal protection

guarantees as it prohibits Florida Supreme Court review of such

decisions under Florida Rules of Appellate Procedure, Rule

9.030(a)(ii). In Jenkins v. State, 385 So.2d 1356, 1359 (Fla.

1980), the Florida Supreme Court held, “Accordingly, we hold

that . . . the Supreme Court of Florida lacks jurisdiction to review

per curiam decisions of the several district courts of appeal of

this state rendered without opinion . . . when the basis for such

review is an alleged conflict of that decision with a decision of

another district court of appeal or of the Supreme Court.”

(Emphasis added).

In this case, such conflicts, which now can never be

-26-

reviewed by the Florida Supreme Court, are numerous and only

partially identified below given the page limitations of this

petition. As such, the per curiam affirmance without written

decision practice of the Florida Third District Court of Appeal as

approved by the Florida Supreme Court violates equal protection

guarantees and this practice must be reviewed by this Court.

B. The Per Curiam Affirmance Violates

Equal Protection By Creating Intra-Third

District Conflicts

As important, the conflict between the reported decisions

of the Florida Third District Court of Appeal and the result in

this case violates Equal Protection Guarantees. Remarkably, the

same Third District Court of Appeal recognized in Velez v. The

City of Coral Gables, 819 So.2d 895 (Fla.App. 3 Dist. 2002),

under an Equal Protection rationale, “(t]he interpretation urged

by the City and the Mallos also raises the spectre of denial of

equal protection of the law, as suggested by the Velezes. An

administrative agency has the burden of providing a reasonable

explanation for inconsistent results based upon similar facts.”

(Citations omitted).

Likewise, the Third District Court of Appeal has the same

burden to provide a “reasonable explanation for inconsistent

results based upon similar facts.” To hold otherwise, would

exempt the Third District Court of Appeal from the same equal

protection obligations of stare decisis it recognized must be

accorded in the administrative arena. Clearly, equal protection

guarantees do not stop at the door to the judicial branch of

government.

Here, the “inconsistent results” from “similar facts” are

summarily detailed, infra, given the page limitations of this

petition by citing the facts in this case juxtaposed against the

reported decisions involving “similar facts” but resulting in

“inconsistent results”.

a.

A. Judge Lando repeatedly interfered with Father's

attempt to proffer evidence: Prior Third District Court of Appeal

rulings that reversal is mandatory. See: Cason v. Smith, 365

So.2d 1042 (3 DCA 1978); Musachia v. Terry, 140 So.2d 605,

608 (3 DCA 1962).

B. Judge Lando (i) never issued the required order

for trial under Florida Family Law Rules, Rule 12.440 and (ii)

never held the required pre-trial hearing under Florida Family

Law Rules, Rule 12.200(b). Prior Third District Court of Appeal

rulings that reversal in such cases is mandatory: Thomas v.

Feinberg 745 So.2d 500, 501 (3rd DCA 1999); Gelatt v. State,

Dept. of HRS, 585 So.2d 477 (3" DCA 1991); Ivans v.

Greenbaum, 613 So.2d 130(Fla.App. 3 Dist. 1993).

C. The orders at issue were the verbatim adoptions

by Judge Lando of the proposed orders submitted by Mother's

counsel. Prior Third District Court of Appeal rulings that

reversal in such cases is mandatory: Waldman v. Waldman, 520

So. 2d 87, n.4 (3 DCA 1988).

D. Father's parental rights were terminated without

notice to him that Judge Lando was considering such a course or

an opportunity to be heard and present evidence. Prior Third

District Court of Appeal rulings that reversal in such cases is

mandatory Scheer v. Scheer, 132 So.2d 456, 458 (3 DCA 1961);

Berlin v. Berlin, 369 So.2d 434,(Fla.App. 3 Dist. 1979); Kranis v.

Kranis, 313 So.2d 135 (Fla.App. 3 Dist. 1975); Childress v.

Childress, 309 So.2d 581(Fla.App. 3 Dist. 1975).

, E. Father was denied a hearing on whether he was

entitled to attorney fees. Prior Third District Court of Appeal

rulings that reversal in such cases is a hearing is mandatory: Levy

v. Levy, 483 So.2d 455 (3 DCA 1986); Bailey v. Bailey, 392

So.2d 49, 52 (3rd DCA 1981); Seitz v. Seitz, 471 So.2d 612, 615

(3 DCA 1985).

-28-

F. Judge Lando utilized privileged evidence. Prior

Third District Court of Appeal rulings that reversal in such cases

is mandatory: Blattman v. Williams Island Associates, Ltd., 592

So.2d 269 (Fla.App. 3 Dist. 1991).

G. Father’s motions as Trustee to dissolve the

temporary injunctions entered below were ignored by Judge

Lando and in all events failed to comply with Fla.R.Civ.P. 1.610.

Prior Third District Court of Appeal rulings that reversal in such

cases is mandatory: Miami v. Coll, 546 So.2d 775 (3 DCA

1989); Ginsberg v. Ginsberg, 738 So.2d 1032, footnote 1

(Fla.App. 3 Dist. 1999); Kallman v. Kallman, 623 So.2d

1213(Fla.App. 3 Dist. 1993); SeaEscape, Ltd., Inc. v. Maximum

Marketing Exposure, Inc., 568 So.2d 952 (Fla.App. 3 Dist. 1990).

H. One day notice of a hearing was not proper for an

out-of-state party. Prior Third District Court of Appeal rulings

that reversal in such cases is mandatory; Henzel v. Golstein, 349

So. 2d 824 (3 DCA 1977); Goral v. State, 553 So. 2d 1282 (3

DCA 1989).

[. The law relating to modification of child support

prohibits the imposition of a support order which is three times

Father’s present annual income as ordered by Judge Lando and

as such that order must be vacated. Prior Third District Court of

Appeal rulings that reversal in such Cases is mandatory; Bickett

v. Bickett, 579 So. 2d 149 (3 DCA 1991); Blum v. Blum, 382

So.2d 52 (Fla. 3d DCA 1980); Suarez v. Suarez, 514 So.2d 428,

429 (Fla. 3d DCA 1987), rev. denied, 525 So.2d 881 (Fla.1988);

Farrington v. Farrington, 390 So.2d 461 (Fla. 3d DCA 1980), pet.

for review denied, 399 So.2d 1142 (Fla.1981); Dunstan v.

Weatherspoon, 505 So.2d 23 (Fla. 3d DCA 1987); Grabow v.

Grabow, 442 So.2d 262, 263 (Fla. 3d DCA 1983).

J. Mother and Father shared “joint parental

responsibility” for the minor children. Prior Third District Court

of Appeal rulings that stripping Father of that responsibility

-29-

required reversal in such cases is mandatory; Tamari v. Turko

Tamari, 599 So.2d 680, 681 (3% DCA 1992); Meloan v.

Coverdale, 525 So.2d 935 (3" DCA 1988).

K. The Contempt Orders fail to make the requisite

findings of fact and as such depart from the essential

requirements of law in this regard. Prior Third District Court of

Appeal rulings that reversal in such cases is mandatory. Vereen

v. Spears, Case No.: 3D02-1476 (3 DCA 2002).

L.. Here, the Third District Court of Appeal premised

Father’s ability to pay not on his assets but upon the assets of his

“very wealthy father”. Prior Third District Court of Appeal

rulings that reversal in such cases is mandatory when reliance

upon funds of family members is the basis for finding “ability to

pay”; Thilem v. Thilem, 662 So.2d 1314 (3 DCA 1995); Sol v.

Sol, 656 So.2d 206 (3" DCA 1995); Bob v. Bob, 310 So.2d 328,

330 (Fla. 3d DCA 1975); Edwards v. Edwards, 615 So.2d 178 (3"°

DCA 1993); Seilkop v. Seilkop, 575 So.2d 269 (Fla. 3d DCA

1991).

Taken separately or together, these twelve examples of

“inconsistent results” from “similar facts” merely scratch the

surface of the Equal Protection and Due Process violations here.

To permit the Third District Court of Appeal to be its own watch-

dog for insuring equal protection of the laws by prohibiting

review of its decisions by any superior court simply does not

comport with the strict demands of stare decisis. Moreover,

given that some 67% of the cases decided by the Third District

Court of Appeal are per curiam without written opinions, the

magnitude of the Equal Protection violation is potentially huge,

as the facts in this case indisputably illuminate.

Accordingly, this Court must review the practice of the

Third District Court of Appeal in issuing per cur’ in affirmances

without written opinion to determine if such a; wiice violates

equal protection guarantees.

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CONCLUSION

Father lost all care, custody and management of his

minor children not because he was ever found to be unfit as a

parent. He has lost this fundamental right through a process

and upon evidence which cannot withstand constitutional

muster for compliance with due process of law. Additionally,

Florida has enacted a statute which invidiously discriminates

against children born of a subsequent marriage and forces Father

to deny to his child of his second marriage the same level of

support — and thereby the ability to express his love and

affection — as the level Florida mandates be given to children of

his first marriage. Indeed, by setting Father's child support

obligations at 133% of his gross income, Florida has destituted

Father and forced Father to deny to his child of his second

marriage the same benefits that the children of his first marriage

~ two of whom have now reached the age of majority — enjoyed

when they were of similar and developmentally crucial age.

Moreover, the Supremacy clause cannot sanction

Florida’s prohibiting Father from seeking relief in Federal Court

and sanctioning Father when he failed to appear at a one-day’s

noticed state-court hearing when under federal subpoena in

another state. Last, Florida’s procedure for denying review of

appellate decisions rendered per curiam without written opinion

creates both inter-district and intra-district conflicts of law which

result in equal protection violations. Accordingly, this petition

for a writ of certiorari must be granted to review the procedural

and substantive violations of Father's fundamental parental and

constitutional rights.

Respectfully submitted,

Montgomery Blair Sibley

Counsel for Petitioner