Michigan Court of Appeals
| Abused Swan |
S T A T E O F M I C H I G A N
C O U R T O F A P P E A L S
UNPUBLISHED
July19, 2011
No. 302006
PATRICK KLOOSTRA, SR.,
Plaintiff-Appellee,
v
DEANNA LYNN KLOOSTRA,
Defendant-Appellant.
.
PER CURIAM.
In this postdivorce custody dispute, defendant Deanna Lynn Kloostra
appeals as of right challenging a December 2010 order denying her motion
to modify custody. We affirm the trial court’s order, and remand for the
continuation of these proceedings.
Patrick and Deanna Kloostra married in 1991 and divorced in 2001. The
marriage produced three children, who currently range from 12 to 21 years
of age. The judgment of divorce awarded the parties joint legal custody of
the children, with Deanna having primary physical custody. A specific
parenting time schedule set forth in the judgment governed Patrick’s
parenting time. Over the course of the next two years, the parties fought
multiple, bitter battles regarding parenting time and child support. The
circuit court ordered the parties to mediate their disputes, and in January
2003, entered a new parenting time order.
Unfortunately, the 2003 order failed to resolve the parties’ unrelenting
conflicts. Due to the seriousness of the parties’ allegations and counter-
allegations, the circuit court appointed a guardian ad litem to represent the
interests of the three children. Finally, after arguing still more motions and
attending countless hearings, the parties stipulated to a 2005 custody order
granting Patrick physical custody of all three children. The stipulated order
afforded Deanna limited parenting time.
Despite that Deanna had stipulated to the 2005 custody order, she persisted
in challenging it. Patrick, too, sought to modify the order based on changed
circumstances. Following an August 2008 hearing, the circuit court ordered
supervision of Deanna’s visits with her children. The factual basis for
supervised parenting time is unclear, because the circuit court record does
not include the hearing transcript. Predictably, however, this order fueled
more controversy.(Interesting this information was left out. The reason this
was left out is because Judge Patricia Gardner does not have any evidence
of Deanna harming her children and it is not on the record, therefore Judge
Gardner is violating the law and can not order the supervised visitation.
She has no jurisdiction and has violated Deanna's Constitutional rights.
There was never an evidentiary hearing.) Deanna visited her children in a
supervised setting for only a short period of time. After two different
supervising agencies refused to facilitate Deanna’s parenting time, the
visits ceased. Deanna has not seen her two younger children for more than
two years.
In April 2009, the original circuit court judge assigned to the case requested
to be relieved of her responsibility, asserting that she “has been the target
of abuse and criticism by the parties or others,” and that the parties’ “focus
… has been the harassment of the judge rather than the best interest of the
children.” Two other circuit judges declined to undertake the matter, based
on their bias or prejudice toward the parties or their counsel. In May 2009,
Judge Daniel V. Zemaitis accepted the assignment.
Undaunted by these developments, Deanna filed a flurry of new motions,
including a request for a new parenting time schedule. After entertaining
argument on these motions, Judge Zemaitis continued his predecessor’s
supervised parenting time order. Nevertheless, Judge Zemaitis agreed to
conduct an evidentiary hearing addressing the appropriateness of the
currently-assigned parenting time supervisor. Judge Zemaitis’s order
provided that Deanna would bear responsibility for arranging the
evidentiary hearing. But instead of proceeding in that direction, Deanna
filed a motion to modify custody, characterizing the existing custody and
parenting time orders as a denial of due process. Judge Zemaitis heard oral
argument regarding Deanna’s custody motion, urged Deanna to arrange for
the previously-ordered evidentiary hearing, and expressed that in the
absence of new evidence, she had not established proper cause or a
change in circumstances to change custody as required by Vodvarka v
Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003).
Deanna now challenges the circuit court’s ruling, contending that it violates
her constitutional rights. Child custody orders “shall be affirmed on appeal
unless the trial judge made findings of fact against the great weight of the
evidence or committed a palpable abuse of discretion or a clear legal error
on a major issue.” MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 876-877,
526 NW2d 889 (1994).
The Child Custody Act “is intended to erect a barrier against removal of a
child from an established custodial environment and to minimize
unwarranted and disruptive change of custody orders.” Heid v AAASulewski
(After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995). Before a
circuit court may consider whether an established custodial environment
exists or review the best interest factors, it first must determine whether
the movant has established either proper cause or a change of
circumstances. Vodvarka, 259 Mich App at 509. This Court described in
Vokvarka that “in order to establish a ‘change of circumstances,’ a
movant must prove that, since the entry of the last custody order, the
conditions surrounding custody of the child, which have or could have a
significant effect on the child’s well-being, have materially changed.” Id. at
513 (emphasis in original). We pointed out in Vodvarka that time always
produces some alterations in a child’s “environment, behavior and well-
being,” but that “normal life changes” do not suffice to demonstrate
changed circumstances; instead, “there must be at least some evidence
that the material changes have had or will almost certainly have an
effect on the child.” Id. at 513-514. The circuit court must make findings of
fact with respect to whether a movant has established proper cause or a
change of circumstances to warrant an evidentiary hearing regarding a
proposed custodial change, and these findings “should be affirmed unless
the evidence clearly preponderates in the opposite direction.” Id. at 507, 512
(internal quotation omitted).
In this case, we discern no error in the circuit court’s conclusion that
Deanna failed to establish a change of circumstances or proper cause to
change custody that would merit an evidentiary hearing concerning the
children’s custody. We also find no merit in Deanna’s constitutional
arguments. Throughout this protracted litigation, she fully participated in all
proceedings. Because Deanna has been afforded a robust and meaningful
opportunity to be heard by the court, her due process rights remain intact.
We have no doubt that additional motions will follow the issuance of this
opinion. Accordingly, we take this opportunity to clarify that this opinion
expresses no view concerning the ultimate resolution of Deanna’s pending
motion to alter the existing parenting time order. Based on Judge Zemaitis’s
exemplary handling of this most difficult matter to date, we are confident
that further parenting time requests will undergo careful consideration
consistent with this Court’s recent decision in Shade v Wright,__ Mich App
__; ___ NW2d __ (Docket no 296318, issued December 2, 2010), slip op at 6,
which instructs that “a more expansive definition of proper cause or
change of circumstances is appropriate for determinations regarding
parenting time when a modification in parenting time does not alter the
established custodial environment.”
Affirmed and remanded for continued proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
C O U R T O F A P P E A L S
UNPUBLISHED
July19, 2011
No. 302006
PATRICK KLOOSTRA, SR.,
Plaintiff-Appellee,
v
DEANNA LYNN KLOOSTRA,
Defendant-Appellant.
.
PER CURIAM.
In this postdivorce custody dispute, defendant Deanna Lynn Kloostra
appeals as of right challenging a December 2010 order denying her motion
to modify custody. We affirm the trial court’s order, and remand for the
continuation of these proceedings.
Patrick and Deanna Kloostra married in 1991 and divorced in 2001. The
marriage produced three children, who currently range from 12 to 21 years
of age. The judgment of divorce awarded the parties joint legal custody of
the children, with Deanna having primary physical custody. A specific
parenting time schedule set forth in the judgment governed Patrick’s
parenting time. Over the course of the next two years, the parties fought
multiple, bitter battles regarding parenting time and child support. The
circuit court ordered the parties to mediate their disputes, and in January
2003, entered a new parenting time order.
Unfortunately, the 2003 order failed to resolve the parties’ unrelenting
conflicts. Due to the seriousness of the parties’ allegations and counter-
allegations, the circuit court appointed a guardian ad litem to represent the
interests of the three children. Finally, after arguing still more motions and
attending countless hearings, the parties stipulated to a 2005 custody order
granting Patrick physical custody of all three children. The stipulated order
afforded Deanna limited parenting time.
Despite that Deanna had stipulated to the 2005 custody order, she persisted
in challenging it. Patrick, too, sought to modify the order based on changed
circumstances. Following an August 2008 hearing, the circuit court ordered
supervision of Deanna’s visits with her children. The factual basis for
supervised parenting time is unclear, because the circuit court record does
not include the hearing transcript. Predictably, however, this order fueled
more controversy.(Interesting this information was left out. The reason this
was left out is because Judge Patricia Gardner does not have any evidence
of Deanna harming her children and it is not on the record, therefore Judge
Gardner is violating the law and can not order the supervised visitation.
She has no jurisdiction and has violated Deanna's Constitutional rights.
There was never an evidentiary hearing.) Deanna visited her children in a
supervised setting for only a short period of time. After two different
supervising agencies refused to facilitate Deanna’s parenting time, the
visits ceased. Deanna has not seen her two younger children for more than
two years.
In April 2009, the original circuit court judge assigned to the case requested
to be relieved of her responsibility, asserting that she “has been the target
of abuse and criticism by the parties or others,” and that the parties’ “focus
… has been the harassment of the judge rather than the best interest of the
children.” Two other circuit judges declined to undertake the matter, based
on their bias or prejudice toward the parties or their counsel. In May 2009,
Judge Daniel V. Zemaitis accepted the assignment.
Undaunted by these developments, Deanna filed a flurry of new motions,
including a request for a new parenting time schedule. After entertaining
argument on these motions, Judge Zemaitis continued his predecessor’s
supervised parenting time order. Nevertheless, Judge Zemaitis agreed to
conduct an evidentiary hearing addressing the appropriateness of the
currently-assigned parenting time supervisor. Judge Zemaitis’s order
provided that Deanna would bear responsibility for arranging the
evidentiary hearing. But instead of proceeding in that direction, Deanna
filed a motion to modify custody, characterizing the existing custody and
parenting time orders as a denial of due process. Judge Zemaitis heard oral
argument regarding Deanna’s custody motion, urged Deanna to arrange for
the previously-ordered evidentiary hearing, and expressed that in the
absence of new evidence, she had not established proper cause or a
change in circumstances to change custody as required by Vodvarka v
Grasmeyer, 259 Mich App 499, 508; 675 NW2d 847 (2003).
Deanna now challenges the circuit court’s ruling, contending that it violates
her constitutional rights. Child custody orders “shall be affirmed on appeal
unless the trial judge made findings of fact against the great weight of the
evidence or committed a palpable abuse of discretion or a clear legal error
on a major issue.” MCL 722.28; Fletcher v Fletcher, 447 Mich 871, 876-877,
526 NW2d 889 (1994).
The Child Custody Act “is intended to erect a barrier against removal of a
child from an established custodial environment and to minimize
unwarranted and disruptive change of custody orders.” Heid v AAASulewski
(After Remand), 209 Mich App 587, 593-594; 532 NW2d 205 (1995). Before a
circuit court may consider whether an established custodial environment
exists or review the best interest factors, it first must determine whether
the movant has established either proper cause or a change of
circumstances. Vodvarka, 259 Mich App at 509. This Court described in
Vokvarka that “in order to establish a ‘change of circumstances,’ a
movant must prove that, since the entry of the last custody order, the
conditions surrounding custody of the child, which have or could have a
significant effect on the child’s well-being, have materially changed.” Id. at
513 (emphasis in original). We pointed out in Vodvarka that time always
produces some alterations in a child’s “environment, behavior and well-
being,” but that “normal life changes” do not suffice to demonstrate
changed circumstances; instead, “there must be at least some evidence
that the material changes have had or will almost certainly have an
effect on the child.” Id. at 513-514. The circuit court must make findings of
fact with respect to whether a movant has established proper cause or a
change of circumstances to warrant an evidentiary hearing regarding a
proposed custodial change, and these findings “should be affirmed unless
the evidence clearly preponderates in the opposite direction.” Id. at 507, 512
(internal quotation omitted).
In this case, we discern no error in the circuit court’s conclusion that
Deanna failed to establish a change of circumstances or proper cause to
change custody that would merit an evidentiary hearing concerning the
children’s custody. We also find no merit in Deanna’s constitutional
arguments. Throughout this protracted litigation, she fully participated in all
proceedings. Because Deanna has been afforded a robust and meaningful
opportunity to be heard by the court, her due process rights remain intact.
We have no doubt that additional motions will follow the issuance of this
opinion. Accordingly, we take this opportunity to clarify that this opinion
expresses no view concerning the ultimate resolution of Deanna’s pending
motion to alter the existing parenting time order. Based on Judge Zemaitis’s
exemplary handling of this most difficult matter to date, we are confident
that further parenting time requests will undergo careful consideration
consistent with this Court’s recent decision in Shade v Wright,__ Mich App
__; ___ NW2d __ (Docket no 296318, issued December 2, 2010), slip op at 6,
which instructs that “a more expansive definition of proper cause or
change of circumstances is appropriate for determinations regarding
parenting time when a modification in parenting time does not alter the
established custodial environment.”
Affirmed and remanded for continued proceedings consistent with this
opinion. We do not retain jurisdiction.
/s/ Michael J. Talbot
/s/ Elizabeth L. Gleicher
/s/ Michael J. Kelly
 |
| |
 |
| |
 |
| |
 |
| |
 |
STATE OF M I C H I G A N
IN THE COURT OF APPEALS
___________________________
Patrick Kloostra Sr.
Plaintiff-Appellee
Court of Appeals No. 302006
V Circuit Court No. 99-005898-DM
Deanna Kloostra
Defendant- Appellant
_______________________________
Deanna Kloostra- Motion For Reconsideration
There is an unlawful concealment of the children from Appellant by all parties involved in this case
because there is no clear and convincing evidence on the record of abuse, neglect, or mental harm
against these children by Appellant on August 2008. 5 CR 61.02 states, in pertinent part: “A palpable error
which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even
though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.” The Court of Appeals was lacking information from the lower
court that was crucial information showing Appellant’s rights were violated and due process not afforded.
Appellant asks this Court to remove Judiciaries from this case based on mistakes, inadvertence, excusable
neglect, and bias.
Standard of Review
Motions for reconsideration are subject to MCR 2.119(F)(3), per MCR 7.215(1(1). "Without restricting the
discretion of the court," the rule sets forth a general policy against granting motions that merely repeat
arguments. Generally, the moving party should "demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the motion must result from correction of the error." But
MCR 2.119(F)(3) does not limit a court's discretion to particular categories of error.
The 2008 motion shows that Judge Gardner did not have any subject matter jurisdiction and has violated
Appellant’s due process rights, which is the reason Appellant has filed with the Court of Appeals. Appellant has
filed several different motions in the lower court to be able to see her children. Appellant was able to file in the
Appeals court only because she was on unemployment and could have all fees waived. To file with the Court of
Appeals and to have been given such poor services is a disgrace to not just Appellant, but all the tax payers who
are pay for such inadequate services.
Following an August 2008 hearing, the circuit court ordered supervision of Deanna’s visits with her children. The
factual basis for supervised parenting time is unclear, because the circuit court record does not include the
hearing transcript. Predictably, however, this order fueled more controversy. (Michigan Court of Appeals
Opinion, July 19, 2011)
Brown v Northville Regional Psychiatric Hasp, 153 Mich App 300, 308 (1986); Smith v Sinai Hasp of Detroit, 152
Mich App 716, 722-23 (1986). If a motion for reconsideration is filed, it shall be submitted to the special panel,
which, if appropriate, may refer some or all of the issues presented to the original panel. Triple E Produce Corp v
Mastronardi Produce, Ltd, 209 Mich App 165, 176-177; 530 NW2d 772 (1995).This Michigan Court Rule is
intended to protect parents of their 5th, 6th,7th and 14th amendment rights. *Cannon v. Commission on Judicial
Olmstad v. United States , (1928) 277 U.S. 43; OWEN v. CITY OF INDEPENDENCE, 445 U.S. 622 (1980);
Qualifications, (1975) 14 Cal. 3d 678, 694. Society's commitment to institutional justice requires that judges be
solicitous of the rights of persons who come before the court. Acts in excess of judicial authority constitutes
misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process.
Failure of Due Process Rights
Title 42, U.S.C. Section 14141. Pattern and Practice in the misconduct of child custody and visitation
discrimination, harassment, and failure of due process rights. This civil statute was a provision within the Violent
Crime Control and Law Enforcement Act of 1994 and makes it unlawful for any governmental authority, or agent
thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of
conduct by law officials that deprives persons of rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States. The Sixth Amendment, which is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal
defendant a fundamental right to be clearly informed of the nature and cause of the charges against him in
sufficient detail to enable him to prepare his defense. In order to determine whether a defendant has received
constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.),
cert. denied, 115 S. Ct. 333 (1994). The Equal Protection Clause of the Fourteenth Amendment prohibits the
deprivation of liberty or property without due process of law and equal protection of the laws. A due process
claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth,
408 U.S. 564, 569 (1972). “A judgment is void if it violated due process,” Johnson v. Zerbst, 304 U.S. 458 S Ct.
1019; Pure Oil Co. v. City of Northlake, 10 Ill. 2D 241, 245, 140 N.E. 2D 289 (1956) Hallberg v. Goldblatt Bros.,
363 Ill. 25 (1936) “Due Process is a requirement of the U.S. Constitution. Violation of the United States
Constitution by a judge deprives that person from acting as a judge under the law. He/she is acting as a private
person, and not in the capacity of being a judge,” Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13
Wall. 335, 20 L.Ed. 646 (1872) “any judge who acts without jurisdiction is engaged in an act of treason,” U.S. v.
Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,
404, 5 L.Ed 257 (1821). Pursuant to Michigan Child Custody Act MCL 722.27a. A child has a right to parenting
time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the
child’s physical, mental, or emotional health. MCL 750.350a. (1) A natural parent of a child shall not take that
child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from the parent who
has custody or parenting time rights pursuant to a lawful court order at the time of the taking or retention. MCL
750.349 a person commits the crime of kidnapping if he or she knowingly restrains another person.
Restrain means to restrict a person's movements or to confine the person so as to interfere with that person's
liberty without that person's consent or without legal authority and may be related or incidental to the commission
of other criminal acts.
When Appellant agreed to supervised visitation and a psychological evaluation, Judge Gardner, Appellee, Donna
Mobilia, and Appellant were all parties to the case. Appellant had her psychological evaluation done and she
went to supervised visitations for three months. The agreement was fulfilled by Appellant. When Judge Patricia
Gardner removed herself from the case, the contract was then null and void because the original parties to the
case no longer existed and the requirements were fulfilled. The order was lacking in length of supervised
visitations, any evidence of mental, physical, or sexual harm of the child or children, and there was no
law that was used to provide such actions. Judge Gardner exceeded her powers, abused her discretion,
and therefore had no subject matter jurisdiction. December 10, 2010 hearing Judge Zemaitis states
Appellant may be right in the big picture because Appellant can not represent herself against something
she does not know she is being held liable for, therefore the August 2008 order is void and unlawful and
Judge Zemaitis understands he continued Judge Gardner’s abuse of process. The Court of Appeals failure of
not requesting the transcripts of the 2008 hearing, knowing that Judge Gardner does not apply the law to
cases, shows bias on their part. The most important information to support this case is missing, and the
Court of Appeals judges do not feel it is necessary to obtain the information!
After entertaining argument on these motions, Judge Zemaitis continued his predecessor’s supervised parenting
time order. (Michigan Court of Appeals Opinion, July 19, 2011)
Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). The Ohio Court of Appeals first held that,
pursuant to a statute in Ohio, the defendant could be held liable for interference with visitation and that the
maternal grandparents could be held liable for the common-law tort of intentional infliction of emotional
distress for their interference with the custody rights and thereby to frustrate [the husband's] desire to enjoy his
visitation rights.” Thus, even without other facts that indicate “outrageousness,” if a person simply promotes the
violation of a visitation order, he may be held liable for intentional infliction of emotional distress in Ohio.
Concealments of a person are always deliberate. Appellee and those involved in this case are withholding the
children in order to force Appellant to shut down her web site and therefore holding the children in involuntary
servitude by Appellee’s mentally abuse of the children and coercion with other parties in the case. In such
causes of actions, the courts have allowed both compensatory and punitive damages. “Intentional infliction of
serious mental distress without physical impact can constitute an independent tort which is actionable
per se.” Hence, in order for an Appellant to recover, although the Appellee’s actions must be outrageous, the
Appellant need only have suffered mental distress, and a physical impact is not necessary. The difference
between the tort of intentional infliction of emotional distress and tort of parental interference is that
intentional infliction of emotional distress hold a requirement that the Appellee demonstrate outrageous
conduct.
Judicial Disqualification
Michigan Court Rule 2.003 (C)(1) "The judge, based on objective and reasonable perceptions, has either (i) a
serious risk of actual bias impacting the due process rights of a party. A party may raise the issue of a judge's
disqualification by motion. Disqualification of a judge is warranted for reasons that include, but are not limited to,
the judge is bias or prejudiced for or against a party, the judge, based on objective and reasonable perceptions,
has either a serious risk of actual bias impacting the due process rights of a party or has failed to adhere to the
appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct. The Appeals
judges know that the missing transcript is more than de minimis and can substantially affect the
proceeding. The public confidence in the judiciary is eroded by irresponsible and improper conduct by these
judges.
The Michigan Court of Appeals 2010 Deling v Lotus case (Doc No 295272) states, “This court has commented,
“We note that this Court has in several previous cases reversed the trial judge in this case, Judge
Patricia Gardner, for failure to conduct requisite hearings, to properly apply the law before changing or
modifying custody.”” The judges on the Deling v Lotus case were Jane E. Markey, Brian K. Zahra, and Elizabeth
L. Gleicher. The fact that these court of appeals judges have noticed this behavior by Judge Patricia Gardner
establishes a pattern and practice. The FACT that Judge Elizabeth L. Gleicher was the judge on the Deling
case and is aware of Judge Gardner’s pattern and practice of not applying the law to cases and did not request
transcripts missing by the lower court that would show bias of Appellant is outrageous. The FACT that the GAL
on the Deling case is an attorney who knows the law and ignored that fact that Judge Gardner did not apply the
law correctly and failed the best interest of the children by not filing her own appeal for the children regarding
Judge Gardner’s decision. The FACT that Donna is the same GAL in this case, should have raised a concern for
Judge Gleicher. The FACT that Judge Zemaitis takes over the case and ignores that Judge Gardner has violated
the law and that there is no evidence of abuse or harm on the record to order supervised visitation should be
noted by the Appeals Judges. December 10, 2010 hearing Judge Zemaitis states Appellant may be right in the
big picture because Appellant can not represent herself against something she does not know she is being held
liable for, but Judge Zemaitis will not state on the record what the evidence of harm is and the law Judge Gardner
used to make her ruling, because there is none. The FACT that Appellant’s children have been concealed from
her for over two years does not raise a concern for the Court of Appeals Judges. No parent should be kept from
their children for such a long period of time. The children being kept from their mother creates emotional distress
on the children.
We have no doubt that additional motions will follow the issuance of this opinion. Accordingly, we take this
opportunity to clarify that this opinion expresses no view concerning the ultimate resolution of Deanna’s pending
motion to alter the existing parenting time order. Based on Judge Zemaitis’s exemplary handling of this most
difficult matter to date, we are confident that further parenting time requests will undergo careful consideration
consistent with this Court’s recent decision in Shade v Wright,__ Mich App __; ___ NW2d __ (Docket no 296318,
issued December 2, 2010), slip op at 6, which instructs that “a more expansive definition of proper cause or
change of circumstances is appropriate for determinations regarding parenting time when a modification in
parenting time does not alter the established custodial environment.” (Michigan Court of Appeals Opinion,
July 19, 2011)
Rose v Clark, 478 US 570 (1986). The assigned judge's conduct and comments must not display a favoritism or
antagonism that would make fair judgment impossible. Also, the appearance of impropriety on the part of the
judge must not be so strong as to rise to the level of a due process violation. A showing of actual bias is not
necessary to disqualify a judge if the probability of actual bias on the part of the judge is too high to be
constitutionally tolerable. Caperton v Massey, US; 129 S Ct 2252; 173 Law Ed 2d 1208 (2009); Ireland v Smith,
214 Mich App 235 (1995) the test for determining whether a trial judge should be disqualified was not just
whether actual bias exists, but also whether there was such likelihood of bias or appearance of bias that the
judge was unable to hold balance between vindicating interests of the court and the interests of the affected
party; even if a judge is personally convinced that he is impartial, disqualification is warranted if the
circumstances cause doubt as to the judge's partiality, bias or prejudice.
Conspiracy Of Rights
Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of Law. This statute makes it a crime for any
person acting under color of law, statue, ordinance, regulation, or custom to willfully deprive or cause to be
deprived from any person those right, privileges, or immunities secured or protected by the constitution and laws
of the U.S. Acts under the “color of any law: include acts not only done by federal, state, or local officials within
the bounds of limits of the lawful authority, but also acts done without and beyond the bounds of their lawful
authority, provided that in order for unlawful acts of any official to be under :color of any law,” the unlawful acts
must be done while such official is purporting or presenting to act in the performance of his/her official duties.
This definition includes Judges and other persons who are bound by laws, statues ordinances, or customs.
Not only has the lower court conspired to keep the children from Appellant, but now the Court of Appeals judges
have conspired with the lower courts to keep the children from Appellant. One can draw this conclusion not only
by the missing information from the lower courts file, but also by the poor investigation done by the appeals court
and the way all parties ignore the fact that the mother is not able to see her children or talk with them for over two
years.
Proceedings Are Vexatious
Rule 7.216 (C) The Court of Appeals may, on its own initiative or on the motion of any party filed under MCR
7.211(C)(8), assess actual and punitive damages or take other disciplinary action when it determines that an
appeal or any of the proceedings in an appeal was vexatious. A pleading, motion, argument, brief, document,
record filed in the case or any testimony presented in the case was grossly lacking in the requirements of
propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the
court.
The August 2008 hearing was filed by Appellant because Appellee was claiming the children on his taxes when
the original divorce decree states that Appellant is to claim the oldest and youngest children. Appellant had the
children for summer visitation and the youngest child had mental issues to the point that Appellant had to take
the child to a mental health facility. Appellant reviewed the Friend of The Court Manuel on what to do when
having a child with difficulties. The Manuel suggested filing a motion and requesting for different parenting
time and that the child receive counseling. Appellant did just that. She requested to get the children every
Saturday from 9am-5pm and for the child to have counseling with a therapist who has an office in the town
Appellant lives in and an office in the town Appellee lives in. Judge Patricia Gardner instead ordered Appellant
for supervised visitations and a psychological evaluation, but did not address the issues of the tax exemptions.
Judge Patricia did not have any evidence that Appellant harmed her children. She did not state the law that she
used to order Appellant for supervised visitations etc…. there for Judge Gardner had no subject matter
jurisdiction to make such orders. Appellant has asked Judge Daniel Zemaitis several times on the record
why she was ordered for supervised visitation. He refuses to answer the question and to place such
information on the record. Appellant has filed several motions requesting visitations, evidentiary hearing, and
change in custody. All motions filed by Appellant in the last eleven years have been denied.
Following an August 2008 hearing, the circuit court ordered supervision of Deanna’s visits with her children. The
factual basis for supervised parenting time is unclear, because the circuit court record does not include the
hearing transcript. Predictably, however, this order fueled more controversy. (Michigan Court of Appeals
Opinion, July 19, 2011)
This motion for reconsiderations is filed as is but Appellant reserves the right to change statutes and duties
should they become more apparent. "Where a plaintiff pleads pro se in a suit for protection of civil rights,
the court should endeavor to construe plaintiff's pleadings without regard to technicalities." B.Platsky v. CIA, 953
F.2d 25, 26 28 (2nd Cir. 1991), "Court errs if court dismisses pro se litigant without instruction of how pleadings
are deficient and how to repair pleadings." Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) "Allegations
such as those asserted by petitioner, however in artfully pleaded, are sufficient"... "Which we hold to less
stringent standards than formal pleadings drafted by lawyers." Jenkins v. McKeithen, 395 U.S. 411, 421 (1959);
Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.
FOR ALL OF THESE REASONS, Deanna Kloostra requests that the Court reconsider its Opinion in this case.
Respectfully submitted,
_______________________
Deanna Kloostra
Pro Se Litigant
Po Box 8491
Grand Rapids, MI 49518
(616)322-5279
deannakloostra@gmail.com
IN THE COURT OF APPEALS
___________________________
Patrick Kloostra Sr.
Plaintiff-Appellee
Court of Appeals No. 302006
V Circuit Court No. 99-005898-DM
Deanna Kloostra
Defendant- Appellant
_______________________________
Deanna Kloostra- Motion For Reconsideration
There is an unlawful concealment of the children from Appellant by all parties involved in this case
because there is no clear and convincing evidence on the record of abuse, neglect, or mental harm
against these children by Appellant on August 2008. 5 CR 61.02 states, in pertinent part: “A palpable error
which affects the substantial rights of a party may be considered . . . by an appellate court on appeal, even
though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination
that manifest injustice has resulted from the error.” The Court of Appeals was lacking information from the lower
court that was crucial information showing Appellant’s rights were violated and due process not afforded.
Appellant asks this Court to remove Judiciaries from this case based on mistakes, inadvertence, excusable
neglect, and bias.
Standard of Review
Motions for reconsideration are subject to MCR 2.119(F)(3), per MCR 7.215(1(1). "Without restricting the
discretion of the court," the rule sets forth a general policy against granting motions that merely repeat
arguments. Generally, the moving party should "demonstrate a palpable error by which the court and the parties
have been misled and show that a different disposition of the motion must result from correction of the error." But
MCR 2.119(F)(3) does not limit a court's discretion to particular categories of error.
The 2008 motion shows that Judge Gardner did not have any subject matter jurisdiction and has violated
Appellant’s due process rights, which is the reason Appellant has filed with the Court of Appeals. Appellant has
filed several different motions in the lower court to be able to see her children. Appellant was able to file in the
Appeals court only because she was on unemployment and could have all fees waived. To file with the Court of
Appeals and to have been given such poor services is a disgrace to not just Appellant, but all the tax payers who
are pay for such inadequate services.
Following an August 2008 hearing, the circuit court ordered supervision of Deanna’s visits with her children. The
factual basis for supervised parenting time is unclear, because the circuit court record does not include the
hearing transcript. Predictably, however, this order fueled more controversy. (Michigan Court of Appeals
Opinion, July 19, 2011)
Brown v Northville Regional Psychiatric Hasp, 153 Mich App 300, 308 (1986); Smith v Sinai Hasp of Detroit, 152
Mich App 716, 722-23 (1986). If a motion for reconsideration is filed, it shall be submitted to the special panel,
which, if appropriate, may refer some or all of the issues presented to the original panel. Triple E Produce Corp v
Mastronardi Produce, Ltd, 209 Mich App 165, 176-177; 530 NW2d 772 (1995).This Michigan Court Rule is
intended to protect parents of their 5th, 6th,7th and 14th amendment rights. *Cannon v. Commission on Judicial
Olmstad v. United States , (1928) 277 U.S. 43; OWEN v. CITY OF INDEPENDENCE, 445 U.S. 622 (1980);
Qualifications, (1975) 14 Cal. 3d 678, 694. Society's commitment to institutional justice requires that judges be
solicitous of the rights of persons who come before the court. Acts in excess of judicial authority constitutes
misconduct, particularly where a judge deliberately disregards the requirements of fairness and due process.
Failure of Due Process Rights
Title 42, U.S.C. Section 14141. Pattern and Practice in the misconduct of child custody and visitation
discrimination, harassment, and failure of due process rights. This civil statute was a provision within the Violent
Crime Control and Law Enforcement Act of 1994 and makes it unlawful for any governmental authority, or agent
thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of
conduct by law officials that deprives persons of rights, privileges, or immunities secured or protected by the
Constitution or laws of the United States. The Sixth Amendment, which is applicable to the states through the Due
Process Clause of the Fourteenth Amendment. Oliver, 333 U.S. 257, 273-74 (1948), guarantees a criminal
defendant a fundamental right to be clearly informed of the nature and cause of the charges against him in
sufficient detail to enable him to prepare his defense. In order to determine whether a defendant has received
constitutionally adequate notice, the court looks first to the information. James v. Borg, 24 F.3d 20, 24 (9th Cir.),
cert. denied, 115 S. Ct. 333 (1994). The Equal Protection Clause of the Fourteenth Amendment prohibits the
deprivation of liberty or property without due process of law and equal protection of the laws. A due process
claim is cognizable only if there is a recognized liberty or property interest at stake. Board of Regents v. Roth,
408 U.S. 564, 569 (1972). “A judgment is void if it violated due process,” Johnson v. Zerbst, 304 U.S. 458 S Ct.
1019; Pure Oil Co. v. City of Northlake, 10 Ill. 2D 241, 245, 140 N.E. 2D 289 (1956) Hallberg v. Goldblatt Bros.,
363 Ill. 25 (1936) “Due Process is a requirement of the U.S. Constitution. Violation of the United States
Constitution by a judge deprives that person from acting as a judge under the law. He/she is acting as a private
person, and not in the capacity of being a judge,” Piper v. Pearson, 2 Gray 120, cited in Bradley v. Fisher, 13
Wall. 335, 20 L.Ed. 646 (1872) “any judge who acts without jurisdiction is engaged in an act of treason,” U.S. v.
Will, 449 U.S. 200, 216, 101 S.Ct. 471, 66 L.Ed.2d 392, 406 (1980); Cohens v. Virginia, 19 U.S. (6 Wheat) 264,
404, 5 L.Ed 257 (1821). Pursuant to Michigan Child Custody Act MCL 722.27a. A child has a right to parenting
time with a parent unless it is shown on the record by clear and convincing evidence that it would endanger the
child’s physical, mental, or emotional health. MCL 750.350a. (1) A natural parent of a child shall not take that
child, or retain that child for more than 24 hours, with the intent to detain or conceal the child from the parent who
has custody or parenting time rights pursuant to a lawful court order at the time of the taking or retention. MCL
750.349 a person commits the crime of kidnapping if he or she knowingly restrains another person.
Restrain means to restrict a person's movements or to confine the person so as to interfere with that person's
liberty without that person's consent or without legal authority and may be related or incidental to the commission
of other criminal acts.
When Appellant agreed to supervised visitation and a psychological evaluation, Judge Gardner, Appellee, Donna
Mobilia, and Appellant were all parties to the case. Appellant had her psychological evaluation done and she
went to supervised visitations for three months. The agreement was fulfilled by Appellant. When Judge Patricia
Gardner removed herself from the case, the contract was then null and void because the original parties to the
case no longer existed and the requirements were fulfilled. The order was lacking in length of supervised
visitations, any evidence of mental, physical, or sexual harm of the child or children, and there was no
law that was used to provide such actions. Judge Gardner exceeded her powers, abused her discretion,
and therefore had no subject matter jurisdiction. December 10, 2010 hearing Judge Zemaitis states
Appellant may be right in the big picture because Appellant can not represent herself against something
she does not know she is being held liable for, therefore the August 2008 order is void and unlawful and
Judge Zemaitis understands he continued Judge Gardner’s abuse of process. The Court of Appeals failure of
not requesting the transcripts of the 2008 hearing, knowing that Judge Gardner does not apply the law to
cases, shows bias on their part. The most important information to support this case is missing, and the
Court of Appeals judges do not feel it is necessary to obtain the information!
After entertaining argument on these motions, Judge Zemaitis continued his predecessor’s supervised parenting
time order. (Michigan Court of Appeals Opinion, July 19, 2011)
Brown v. Denny, 72 Ohio App. 3d 417, 594 N.E.2d 1008 (1991). The Ohio Court of Appeals first held that,
pursuant to a statute in Ohio, the defendant could be held liable for interference with visitation and that the
maternal grandparents could be held liable for the common-law tort of intentional infliction of emotional
distress for their interference with the custody rights and thereby to frustrate [the husband's] desire to enjoy his
visitation rights.” Thus, even without other facts that indicate “outrageousness,” if a person simply promotes the
violation of a visitation order, he may be held liable for intentional infliction of emotional distress in Ohio.
Concealments of a person are always deliberate. Appellee and those involved in this case are withholding the
children in order to force Appellant to shut down her web site and therefore holding the children in involuntary
servitude by Appellee’s mentally abuse of the children and coercion with other parties in the case. In such
causes of actions, the courts have allowed both compensatory and punitive damages. “Intentional infliction of
serious mental distress without physical impact can constitute an independent tort which is actionable
per se.” Hence, in order for an Appellant to recover, although the Appellee’s actions must be outrageous, the
Appellant need only have suffered mental distress, and a physical impact is not necessary. The difference
between the tort of intentional infliction of emotional distress and tort of parental interference is that
intentional infliction of emotional distress hold a requirement that the Appellee demonstrate outrageous
conduct.
Judicial Disqualification
Michigan Court Rule 2.003 (C)(1) "The judge, based on objective and reasonable perceptions, has either (i) a
serious risk of actual bias impacting the due process rights of a party. A party may raise the issue of a judge's
disqualification by motion. Disqualification of a judge is warranted for reasons that include, but are not limited to,
the judge is bias or prejudiced for or against a party, the judge, based on objective and reasonable perceptions,
has either a serious risk of actual bias impacting the due process rights of a party or has failed to adhere to the
appearance of impropriety standard set forth in Canon 2 of the Michigan Code of Judicial Conduct. The Appeals
judges know that the missing transcript is more than de minimis and can substantially affect the
proceeding. The public confidence in the judiciary is eroded by irresponsible and improper conduct by these
judges.
The Michigan Court of Appeals 2010 Deling v Lotus case (Doc No 295272) states, “This court has commented,
“We note that this Court has in several previous cases reversed the trial judge in this case, Judge
Patricia Gardner, for failure to conduct requisite hearings, to properly apply the law before changing or
modifying custody.”” The judges on the Deling v Lotus case were Jane E. Markey, Brian K. Zahra, and Elizabeth
L. Gleicher. The fact that these court of appeals judges have noticed this behavior by Judge Patricia Gardner
establishes a pattern and practice. The FACT that Judge Elizabeth L. Gleicher was the judge on the Deling
case and is aware of Judge Gardner’s pattern and practice of not applying the law to cases and did not request
transcripts missing by the lower court that would show bias of Appellant is outrageous. The FACT that the GAL
on the Deling case is an attorney who knows the law and ignored that fact that Judge Gardner did not apply the
law correctly and failed the best interest of the children by not filing her own appeal for the children regarding
Judge Gardner’s decision. The FACT that Donna is the same GAL in this case, should have raised a concern for
Judge Gleicher. The FACT that Judge Zemaitis takes over the case and ignores that Judge Gardner has violated
the law and that there is no evidence of abuse or harm on the record to order supervised visitation should be
noted by the Appeals Judges. December 10, 2010 hearing Judge Zemaitis states Appellant may be right in the
big picture because Appellant can not represent herself against something she does not know she is being held
liable for, but Judge Zemaitis will not state on the record what the evidence of harm is and the law Judge Gardner
used to make her ruling, because there is none. The FACT that Appellant’s children have been concealed from
her for over two years does not raise a concern for the Court of Appeals Judges. No parent should be kept from
their children for such a long period of time. The children being kept from their mother creates emotional distress
on the children.
We have no doubt that additional motions will follow the issuance of this opinion. Accordingly, we take this
opportunity to clarify that this opinion expresses no view concerning the ultimate resolution of Deanna’s pending
motion to alter the existing parenting time order. Based on Judge Zemaitis’s exemplary handling of this most
difficult matter to date, we are confident that further parenting time requests will undergo careful consideration
consistent with this Court’s recent decision in Shade v Wright,__ Mich App __; ___ NW2d __ (Docket no 296318,
issued December 2, 2010), slip op at 6, which instructs that “a more expansive definition of proper cause or
change of circumstances is appropriate for determinations regarding parenting time when a modification in
parenting time does not alter the established custodial environment.” (Michigan Court of Appeals Opinion,
July 19, 2011)
Rose v Clark, 478 US 570 (1986). The assigned judge's conduct and comments must not display a favoritism or
antagonism that would make fair judgment impossible. Also, the appearance of impropriety on the part of the
judge must not be so strong as to rise to the level of a due process violation. A showing of actual bias is not
necessary to disqualify a judge if the probability of actual bias on the part of the judge is too high to be
constitutionally tolerable. Caperton v Massey, US; 129 S Ct 2252; 173 Law Ed 2d 1208 (2009); Ireland v Smith,
214 Mich App 235 (1995) the test for determining whether a trial judge should be disqualified was not just
whether actual bias exists, but also whether there was such likelihood of bias or appearance of bias that the
judge was unable to hold balance between vindicating interests of the court and the interests of the affected
party; even if a judge is personally convinced that he is impartial, disqualification is warranted if the
circumstances cause doubt as to the judge's partiality, bias or prejudice.
Conspiracy Of Rights
Title 18, U.S.C., Section 242 Deprivation of Rights Under Color of Law. This statute makes it a crime for any
person acting under color of law, statue, ordinance, regulation, or custom to willfully deprive or cause to be
deprived from any person those right, privileges, or immunities secured or protected by the constitution and laws
of the U.S. Acts under the “color of any law: include acts not only done by federal, state, or local officials within
the bounds of limits of the lawful authority, but also acts done without and beyond the bounds of their lawful
authority, provided that in order for unlawful acts of any official to be under :color of any law,” the unlawful acts
must be done while such official is purporting or presenting to act in the performance of his/her official duties.
This definition includes Judges and other persons who are bound by laws, statues ordinances, or customs.
Not only has the lower court conspired to keep the children from Appellant, but now the Court of Appeals judges
have conspired with the lower courts to keep the children from Appellant. One can draw this conclusion not only
by the missing information from the lower courts file, but also by the poor investigation done by the appeals court
and the way all parties ignore the fact that the mother is not able to see her children or talk with them for over two
years.
Proceedings Are Vexatious
Rule 7.216 (C) The Court of Appeals may, on its own initiative or on the motion of any party filed under MCR
7.211(C)(8), assess actual and punitive damages or take other disciplinary action when it determines that an
appeal or any of the proceedings in an appeal was vexatious. A pleading, motion, argument, brief, document,
record filed in the case or any testimony presented in the case was grossly lacking in the requirements of
propriety, violated court rules, or grossly disregarded the requirements of a fair presentation of the issues to the
court.
The August 2008 hearing was filed by Appellant because Appellee was claiming the children on his taxes when
the original divorce decree states that Appellant is to claim the oldest and youngest children. Appellant had the
children for summer visitation and the youngest child had mental issues to the point that Appellant had to take
the child to a mental health facility. Appellant reviewed the Friend of The Court Manuel on what to do when
having a child with difficulties. The Manuel suggested filing a motion and requesting for different parenting
time and that the child receive counseling. Appellant did just that. She requested to get the children every
Saturday from 9am-5pm and for the child to have counseling with a therapist who has an office in the town
Appellant lives in and an office in the town Appellee lives in. Judge Patricia Gardner instead ordered Appellant
for supervised visitations and a psychological evaluation, but did not address the issues of the tax exemptions.
Judge Patricia did not have any evidence that Appellant harmed her children. She did not state the law that she
used to order Appellant for supervised visitations etc…. there for Judge Gardner had no subject matter
jurisdiction to make such orders. Appellant has asked Judge Daniel Zemaitis several times on the record
why she was ordered for supervised visitation. He refuses to answer the question and to place such
information on the record. Appellant has filed several motions requesting visitations, evidentiary hearing, and
change in custody. All motions filed by Appellant in the last eleven years have been denied.
Following an August 2008 hearing, the circuit court ordered supervision of Deanna’s visits with her children. The
factual basis for supervised parenting time is unclear, because the circuit court record does not include the
hearing transcript. Predictably, however, this order fueled more controversy. (Michigan Court of Appeals
Opinion, July 19, 2011)
This motion for reconsiderations is filed as is but Appellant reserves the right to change statutes and duties
should they become more apparent. "Where a plaintiff pleads pro se in a suit for protection of civil rights,
the court should endeavor to construe plaintiff's pleadings without regard to technicalities." B.Platsky v. CIA, 953
F.2d 25, 26 28 (2nd Cir. 1991), "Court errs if court dismisses pro se litigant without instruction of how pleadings
are deficient and how to repair pleadings." Puckett v. Cox, 456 F. 2d 233 (1972) (6th Cir. USCA) "Allegations
such as those asserted by petitioner, however in artfully pleaded, are sufficient"... "Which we hold to less
stringent standards than formal pleadings drafted by lawyers." Jenkins v. McKeithen, 395 U.S. 411, 421 (1959);
Picking v. Pennsylvania R. Co., 151 Fed 2nd 240; Pucket v. Cox, 456 2nd 233.
FOR ALL OF THESE REASONS, Deanna Kloostra requests that the Court reconsider its Opinion in this case.
Respectfully submitted,
_______________________
Deanna Kloostra
Pro Se Litigant
Po Box 8491
Grand Rapids, MI 49518
(616)322-5279
deannakloostra@gmail.com
| Facebook Victims Of Judge Gardner S.W.I.T.C.H.E.D. |
| 1-800-706-4951 |