1 IN THE CIRCUIT COURT OF THE COUNTY OF ST. CHARLES

Transcription

1 1 IN THE CIRCUIT COURT OF THE COUNTY OF ST. CHARLES 2 STATE OF MISSOURI JOHN SMITH, ) ) 6 Petitioner, ) ) Cause No CV vs. ) 0511-FC ) Division 14 8 LORA JANE SMITH, ) ) 9 Defendant/Respondent. ) TRANSCRIPT OF PROCEEDINGS 14 January 14, Transcribed from CD by Robert O. Hull, Jr., CCR # for HULL REPORTING Madison Street Saint Charles, Missouri (636)

2 1 IN THE CIRCUIT COURT OF THE COUNTY OF ST. CHARLES 2 STATE OF MISSOURI JOHN SMITH, ) ) 6 Petitioner, ) ) Cause No CV vs. ) 0511-FC ) Division 14 8 LORA JANE SMITH, ) ) 9 Respondent/Defendant. ) On Monday, the 14th day of January, 2013, the 17 above-entitled cause came on for hearing in Union, 18 Missouri, before the Honorable David Tobben, Judge of 19 Division 14, for the 11th Judicial Circuit at 20 St. Charles, Missouri. 21 * * * * *

3 1 PROCEEDINGS 2 THE COURT: Calling on the record Case 3 No CR08988, the matter of Lora -- or John Smith vs. 4 Lora Smith. We're here to take up matters in this case 5 relating to the petition to set aside the divorce 6 judgment. Mr. Smith is present in person and pro se. 7 The respondent, Lora Smith -- Defendant, Lora Smith, is 8 present by her counsel, Mr. Howard. This is a 9 St. Charles County case which the court is hearing in 10 Franklin County by agreement of the parties, and I do 11 acknowledge and then -- and I appreciate, gentlemen, your 12 willingness to cross the forbidden and forbidding 13 Missouri River to -- to deal with me in my own lair. 14 I guess, Mr. Smith, I'll let you address the 15 court first, and then I'll allow Mr. Howard to respond. 16 MR. SMITH: Well, we got some preliminary 17 matters, your Honor. 18 THE COURT: All right. 19 MR. SMITH: First, I've requested that you 20 preliminarily clarify your order in some detail. I was 21 hoping that you'd be able to do that before this hearing. 22 Also, I have demanded that you rule on the motion for 23 summary judgment. Again, I cannot adequately address 24 the -- the judgment due to the fact that -- that there is 25 virtually no factual finding, no legal citation. I would 3

4 1 further suggest, your Honor, that the judgment is not a 2 final judgment at this particular point because of the 3 procedure in which this judgment was reached. 4 Initially this -- we held a hearing on the -- 5 on the respondent's motion to dismiss. You entered a 6 judgment in February dismissing petitions on the exact 7 same grounds as you issued in November. I filed a motion 8 for rehearing and reconsideration as well as a motion for 9 summary judgment with -- with all the requisites pursuant 10 to statute. You vacated your order. I assumed, and 11 apparently I assumed wrongly, that by the vacation that 12 you were denying that -- that motion. You then scheduled 13 hearings for July 6th on all remaining matters. 14 What was heard on July 6th was the motion for 15 summary judgment. It was called, heard, argued, and 16 submitted. At court that day I inquired at the very 17 end--i remember you were trying to get out of there 18 because your grandson or granddaughter, I don't know 19 which it is, was coming--and I said, "Do you think you'd 20 be able to have it by the 15th?" Because that was the 21 date of my daughter's wedding. And you believed at that 22 time that you could. 23 After that date passed I ed the clerk, 24 said, "He -- he said he -- he said he was going to have 25 it by the 15th. I know a lot's going on. When does he 4

5 1 expect to have a ruling again?" And, also, I requested 2 an interlocutory ruling just on the issue of whether or 3 not the judgment was void. I had -- I had done that 4 previous to the July 6th hearing and was informed that 5 you would be taking that up as well on July 6th. I think 6 I was given a date of sometime the week of August 3rd or 7 thereabouts that you anticipated having a judgment. That 8 date passed. I contacted the clerks. They said, "Oh, 9 he's on the judicial college," you know, "and -- and 10 we'll get back to you." I then inquired a few weeks 11 later and was basically said, "We have everything we 12 need. If we need anything from you, we'll call you." 13 I then filed a -- more argument, and ultimately 14 the day that you issued the last judgment I had just -- I 15 had requested a status conference and a settlement 16 conference. You issued your judgment late on the 17 Wednesday before Thanksgiving. I didn't get a copy of it 18 till, I think, next Tuesday. 19 The problem here is I don't -- I -- Shall we 20 start with your subject matter jurisdiction? That issue? 21 THE COURT: Go ahead. 22 MR. SMITH: Okay. 23 Would you define your subject matter 24 jurisdiction, Judge? That's your -- The duty of the 25 court is to refine its subject matter jurisdiction. 5

6 1 THE COURT: I'm not sure I'm required to do 2 that, sir. I want -- I want to hear your arguments. 3 MR. SMITH: Well, -- 4 THE COURT: Do I or do I not have subject 5 matter jurisdiction? 6 MR. SMITH: You're claiming you don't. 7 THE COURT: Mm-hm. 8 MR. SMITH: Okay. So it's not a question 9 of THE COURT: Yeah. I think my order, last 11 order, is very clear. I've -- In reconsidering the 12 matter I -- I decided that I was right the first time. 13 MR. SMITH: Well, I'm well aware of what 14 you did. 15 THE COURT: And I understand -- And -- and 16 I -- I don't think that needs clarification. I think 17 that's -- that's pretty -- pretty clear. 18 MR. SMITH: Oh, I'm not saying that you do 19 not have the power to -- to issue those. I'm saying I 20 don't believe you have the authority to do that. 21 THE COURT: Well, MR. SMITH: You know, let me address that. 23 First of all, you are specially assigned by the Supreme 24 Court. You're not -- You're not sitting in the court of 25 your general jurisdiction. You're assigned to a specific 6

7 1 case. That case is a petition for declaratory judgment. 2 Do you admit that you have the authority to 3 determine the petition for declaratory judgment just at 4 that level? 5 THE COURT: In a properly assigned case I 6 have all of the authority of a judge sitting -- of a 7 circuit judge in that particular case. 8 MR. SMITH: In that -- Right. So 9 whatever -- whatever THE COURT: So whatever powers any other 11 circuit judge might have vis-à-vis your case are powers 12 that I have as the assigned judge thanks to the Supreme 13 Court. 14 MR. SMITH: Right. Those powers in this 15 case have very -- leave you very little discretion. Zero 16 discretion. Because this is not a discretionary act. 17 You have a petition. So far I've not heard anybody say 18 that the elements of the petition are not there, facts 19 supporting the petition are not there, that the motion 20 for summary judgment is wrong, that there's been a 21 genuine base -- there's a general material fact that is 22 not decided. So you have, by virtue of the order, 23 jurisdiction over this cause. Okay. 24 As a judge on a declaratory judgment motion 25 your obligation is set forth in statute -- in -- in 7

8 1 statute. And if you'll just give me a second. Because I 2 don't have in front of me. Your jurisdiction is a court 3 of limited jurisdiction. You do not have plenary power. 4 You have inherent power to do that which you were 5 assigned to. The obligation of a judge assigned to a 6 declaratory judgment petition is -- as laid out in my 7 motion for new hearing--you have a copy of my motion for 8 rehearing--basically what it says is that here are the 9 elements (inaudible) controversy between the same parties 10 where a declaration of the rights and responsibilities 11 among the parties will bring a conclusion, will settle 12 it, make it conclusive. You have an affirmative 13 obligation to do that unless there is a legally 14 supportable reason to avoid doing that. 15 So I'm asserting that absent anything else, 16 just on the face of the petition, you have jurisdiction 17 to hear that petition. Do you agree with that? 18 THE COURT: I'm getting tired of your 19 asking me questions. Just state your case. 20 MR. SMITH: Judge, I'm trying to get THE COURT: I've said I have the ability I have the authority to hear the counter case -- the 23 controversy assuming that jurisdiction. 24 MR. SMITH: Well, Judge, are you going to 25 rule on the motion for summary judgment? 8

9 1 THE COURT: I want to hear from Mr. Howard. 2 MR. SMITH: That's fine. 3 THE COURT: Any response? 4 MR. HOWARD: Your Honor, I believe that 5 once the case is dismissed for lack of subject matter 6 jurisdiction that as you stated in your order that a 7 motion for summary judgment is moot. Because I believe 8 that the status of law is that once a court believes it 9 has lack of subject matter jurisdiction it can't take any 10 action other than dismissing the case. I think that 11 Mr. Smith clearly lays out where his position is and his 12 feelings in his December 19th to your Honor, and I 13 don't know if your Honor has had an opportunity THE COURT: I do. I -- Well, I've -- I 15 have in front of me. I printed it off this morning. 16 MR. HOWARD: Okay. I believe that -- I 17 want to go through a little bit of history so you 18 understand where I'm coming from, your Honor. My firm 19 got involved in the dissolution of marriage. We were the 20 second attorney representing Mrs. Smith. We got involved 21 primarily after a settlement proposal and a settlement 22 agreement was forwarded to Mrs. Smith from Mr. Smith and 23 his attorney seeking the divorce and Mr. Smith seeking by 24 court order monthly conjugal visits with his ex-wife. 25 MR. SMITH: Excuse me, your honor. 9

10 1 MR. HOWARD: We then -- 2 THE COURT: Let him finish. 3 MR. HOWARD: We got the judgment. It was 4 after trial in front of Judge Frawley. Subsequent to 5 that Mr. Smith filed his appeal alleging that Judge 6 Frawley was -- was biased against him. While the appeal 7 was pending he also filed a motion to modify the 8 maintenance obligation that he was ordered to pay. The 9 appeal was dismissed by the appeals court. The motion to 10 modify was assigned to Judge Demarce after there was a a hearing on a petition for change of judge, which we've 12 talked about that quite a bit. Judge Demarce -- And 13 Mr. Smith was represented by counsel at the hearing on 14 the motion to modify. 15 Mr. Smith, after hearing with Judge Demarce, 16 his motion to modify was denied, and Mrs. Smith's motion 17 for contempt was sustained. There was an order of -- of 18 contempt entered. Subsequent to that, on -- on or about 19 October 13th, 2011, Mr. Smith after not getting the 20 result that -- my interpretation, not getting the result 21 that he wanted filed a motion to disqualify Judge Demarce 22 alleging, among other things, some bias against him and 23 alleging that Judge Demarce didn't have jurisdiction to 24 do what Judge Demarce did. That was denied, and 25 Mr. Smith spent a little bit of time in jail because he 10

11 1 didn't comply with the judgment finding him in contempt 2 of court. He posted a bond. He was released from jail. 3 Interestingly, he hasn't complied with that since then. 4 He hasn't paid any of that -- the maintenance. The only 5 maintenance my client is receiving is -- are those 6 maintenance moneys that are withheld from his -- his pay. 7 He also has received quite a bit of moneys from his 8 retirement which are supposed to be divided, which he 9 hasn't complied with that in the underlying divorce. He 10 filed this action seeking to have a declaratory judgment 11 that his divorce is void from the beginning. 12 I filed a motion for sanctions and sent that to 13 Mr. Smith, which there are two times. Their second 14 amended one, which is, I think, properly before the 15 court. Mr. -- Your Honor dismissed the -- Not 16 dismissed. Your Honor found it did not have subject 17 matter jurisdiction and set that aside, and then we had 18 some -- some other things. And then your Honor found it 19 did not have subject matter jurisdiction. 20 I believe, and I may be repeating myself, but 21 once you believe you don't have subject matter 22 jurisdiction, the only thing you're supposed to do in my 23 understanding of law is you dismiss the case. If 24 Mr. Smith believes he's been improperly aggrieved by 25 that, I believe the proper course of action is you file 11

12 1 something with the -- the Court of Appeals. After 2 Mr. Smith was -- this case was dismissed he sent your Honor 3 a on December 19th, which, I believe, very clearly 4 shows pattern of behavior that Mr. Smith engages in. 5 He was unhappy with the dismissal, and if you 6 read the -- the that's in front of your Honor -- 7 And I unfortunately don't have a page number. I'm 8 looking at it from my -- my phone here. Page -- He -- he 9 requests the court to enter sanctions in this case and Would you like to take an opportunity to read that, Judge? 11 THE COURT: I think I have it in front of me. 12 MR. SMITH: And what is the date? 13 THE COURT: It's a subparagraph labeled D, 14 in bold letters, sanctions and a short, five-line 15 paragraph followed by MR. HOWARD: If after notice and a 17 reasonable opportunity? 18 THE COURT: Yes. 19 MR. HOWARD: Yeah. The most telling in 20 addition to talking about what he believes Judge Frawley 21 did wrong is -- For purposes of this the most telling 22 paragraph is the next paragraph, which starts in my -- my 23 purpose in requesting application of the rule, that 24 paragraph, your Honor. 25 THE COURT: Yes. I see it. 12

13 1 I have read that entire paragraph. 2 MR. HOWARD: Okay. I believe it shows a 3 very clear pattern of behavior that goes all the way back 4 to his allegations of Judge Frawley that if Mr. Smith 5 doesn't get his way he personally attacks the judge and 6 so I in answer to his -- his position, Judge, I believe 7 you properly entered a judgment dismissing it for lack of 8 subject matter jurisdiction and I believe once your Honor 9 dismisses for lack of subject matter jurisdiction there's 10 no other action you could take, although I do believe 11 that a motion for sanctions as Mr. Smith has clearly 12 requested a sanction order be entered that would -- I 13 guess it would be his motion for sanctions or the court 14 can do it under your own motion for sanctions. I think 15 that that is the only thing that would be applicable 16 although, again, I have not found a case specifically on 17 point saying that after a dismissal for lack of subject 18 matter jurisdiction your Honor can enter such. I have to 19 be -- I don't -- I don't know the answer to that, Judge. 20 THE COURT: Okay. 21 MR. HOWARD: I have looked. 22 THE COURT: Thank you, Mr. Howard. 23 Mr. Smith, you wish to respond? 24 MR. SMITH: Yes. My motivation in my 25 filings are irrelevant. This is an issue of law. I have 13

14 1 proved and have a court finding that says Judge Thomas J. 2 Frawley was specially assigned to cause 0511-CV3085, I 3 believe it is, was -- had actual bias, prejudice, and 4 personality -- and animosity. I'm sorry, you Honor. He 5 does have personality. He did it in such a manner that I 6 can demonstrate it to you right here just with this piece 7 of paper, and the page from the order, I believe it's on 8 page 12, paragraph 11, or it may be page 6, paragraph There you go. 10 Now, see, petition for change of judge for 11 cause you have had a copy -- you have had an opportunity 12 to read that as well as the affidavit, correct? 13 THE COURT: I've read that some months ago, 14 but, yes, I have. 15 MR. SMITH: Okay. Paragraph 11, Husband, 16 who is employed by the Eleventh Judicial Circuit Family 17 Court, according to a statement of income and expenses, 18 has gross wages of two thousand eight hundred and fifteen 19 dollars and fifty-eight cents ($2,815.58) (inaudible). 20 According to his payroll records, Husband has currently 21 gross wages of two thousand nine hundred sixteen dollars 22 and twenty-one cents ($2,916.21). Judge, there's only 23 one of my statement of income and expenses filed. Mind 24 if I show you? 25 THE COURT: Okay. 14

15 1 MR. SMITH: So the statement that his 2 income and expense statement has gross wages of two 3 thousand eight hundred and seventeen dollars and 4 fifty-eight cents ($2,817.58) is demonstrably false. 5 THE COURT: Okay. 6 MR. SMITH: Now you have to look at the 7 second paragraph, B. According to his paycheck, however, 8 it's a higher amount. Okay? What's the purpose of that, 9 Judge? What inference is -- are you supposed to draw? I 10 know what inference I drew. I know what any reasonable 11 person could drew. And that is inferring that I either that I misled the court about my wages, that I lied to 13 the court about my wages, all of which go to my 14 reputation both personally and professionally for 15 truthfulness. And on the professional level it's even 16 higher because of Rule 55 O3. I mean, I think it's 17 axiomatic that you can't lie on the stand, you can't lie 18 in your pleadings. Right? 19 THE COURT: Well, that's what you're 20 supposed to not do, is lie to the court in any form or 21 fashion, whether by pleading or testimony. 22 MR. SMITH: Or even misleading them. Okay. 23 So that's just one thing. Okay? 24 I assert that's libel per se, and the only 25 reason that the judge will not see -- receive any 15

16 1 consequences from it is because he has absolute judicial 2 immunity. Then he went on to literally make up facts. 3 Pulled them straight out of the air. 4 THE COURT: All right. I'm not going to 5 retry the divorce right now. 6 MR. SMITH: This is not the divorce, your 7 Honor. This is my motion for petition for change of 8 judge upon the judgment of which is based my claim that 9 the order is void. 10 THE COURT: Let's move on to brass tacks. 11 MR. SMITH: Mm-hm. 12 THE COURT: Supreme Court assigned this 13 case to me. 14 MR. SMITH: Mm-hm. 15 THE COURT: About a year ago. Our first 16 encounter and first argument on motions was February 16th 17 of Shortly thereafter I made -- came to the 18 conclusion based on case law and argument that I lacked 19 subject matter jurisdiction, which I believe -- contrary 20 to your assertion, I believe I have the authority to make 21 that determination. 22 MR. SMITH: I agree. 23 THE COURT: If I determine that I have lack subject matter determination -- or subject matter 25 jurisdiction, then the proper remedy is for the court to 16

17 1 dismiss the petition, and I so -- 2 MR. SMITH: Oh, I agree. 3 THE COURT: I set aside that order, 4 listened to all arguments, and received and reviewed 5 voluminous motions, memoranda, et cetera. Upon review of 6 all that, frankly, I concluded I was right the first 7 time, and I stand by that decision. 8 MR. SMITH: I -- I understand that. 9 THE COURT: Now having made that decision 10 and followed -- and followed my obligation to dismiss the 11 petition, I believe that there -- I lack any -- any 12 jurisdiction to consider summary judgment motion, because 13 there's nothing before the court to decide. Therefore, 14 the court is going to affirm its decision and its 15 judgment dismissing the case. I think your remedy's in 16 Court of Appeals. 17 MR. SMITH: And it well may be, your Honor, 18 but THE COURT: That's where it is. 20 MR. SMITH: I'm trying to clarify the 21 record here so that we can be clear in -- if -- if and 22 when that it is necessary to go to a court of appeals. 23 THE COURT: I believe my judgment is clear. 24 I lack jurisdiction -- subject matter jurisdiction on it. 25 MR. SMITH: On what basis, your Honor? 17

18 1 THE COURT: I found it was -- I found that 2 it was a collateral attack on the judgment which is 3 impermissible. Now, -- 4 MR. SMITH: Okay. May I -- May I make a 5 record? 6 THE COURT: No. You may not. 7 MR. SMITH: I may not make a record? 8 THE COURT: Make the record. 9 MR. SMITH: Thank you. 10 Collateral -- Will you recognize Black's Law 11 Dictionary as an authoritative source, your Honor? 12 THE COURT: Well, I -- I bought 13 Ballentine's when I was in law school, but Black's Black's is universally recognized. That's MR. SMITH: Okay. 16 THE COURT: As authoritative -- as 17 authoritative statements of the English common law as 18 received in this country during the -- whatever, fourth 19 year of the reign of James I, I think it was, in MR. SMITH: I -- I think you're correct. 21 And it was actually built on canon law which became 22 common law and go back to Romans if you want to. 23 THE COURT: Let's not. 24 MR. SMITH: An attack on a judgment in a 25 manner other than by action or proceeding whose very 18

19 1 purpose is to impeach or overturn that judgment or, 2 stated affirmatively, a collateral attack on a judgment 3 is an attack made by or in an action or proceeding that 4 has an independent purpose other than impeaching or 5 overturning the judgment. 6 Direct attack. Direct attack: A direct attack 7 on a judgment or a decree is an attempt for sufficient 8 cause to have it annulled, reversed, vacated, corrected, 9 declared void, or enjoined in a proceeding instituted for 10 that specific purpose, such as an appeal, writ of error, 11 bill of review, or injunction to restrain its execution. 12 Distinguished from a collateral attack, which is an 13 attempt to impeach the validity or binding force of the 14 judgment or decree as a side issue or in a proceeding 15 instituted by some other purpose, a direct attack on a 16 proceed -- judicial proceeding is an attempt to void or 17 correct it in a manner provided by law. 18 It's not a collateral attack by definition, 19 Judge. 20 THE COURT: Okay. I guess we'll have to 21 agree to disagree on that point then. 22 MR. SMITH: Okay. 23 THE COURT: I -- The court -- That is 24 going to be the order of the court. I will -- I'll 25 draft an order -- 19

20 1 MR. SMITH: Your Honor, can I -- I still 2 have a record to make. I'm sorry. 3 With respect to your subject matter 4 jurisdiction claim, -- 5 THE COURT: Yes? 6 MR. SMITH: -- your Honor, you have been 7 specially assigned by the Supreme Court to this case. 8 Subject matter jurisdiction is defined -- Subject -- 9 subject matter jurisdiction: Term refers to the court's 10 competence to hear and determine cases of a general class 11 to which proceedings in question belong, the power to 12 deal with the general subject matter in the action. 13 Subject matter jurisdiction deals with the court's 14 competency to hear a particular category of cases. The 15 order assigning you from Supreme Court gave you subject 16 matter jurisdiction over this cause. 17 I still am unable to find an articulable basis 18 for your sua sponte assertion that you do not have 19 subject matter jurisdiction. 20 THE COURT: I appreciate your comments. 21 Thank you. 22 MR. SMITH: Judge. Judge, you're -- you're 23 not going to give me any clarification or anything of 24 that nature? 25 THE COURT: My order stands. 20

21 1 MR. SMITH: Okay. Will you give -- 2 THE COURT: If the Court of Appeals 3 disagrees with me and agrees with you, it won't be the 4 first time. 5 MR. SMITH: Well, I -- I understand that. 6 And, Judge, I do have, you know, -- Please do not take 7 this the wrong way. I believe that no reasonable person 8 or jurist could reach the judgments that you did after 9 reading the law as I provided in both the motion and the 10 suggestions in summary judgment. 11 THE COURT: Well, as I said, I think we'll 12 have to agree to disagree, and I may be unreasonable in 13 my -- in my conclusions, but certainly my brethren in 14 Court of Appeals would not hesitate if I -- If I'm 15 wrong, I'll be the first to admit. I don't think I am. 16 MR. SMITH: Right. 17 THE COURT: And if they come back and say, 18 Judge Tobben, you're wrong, we're back to square one. I 19 will certainly then rule on your motion for summary 20 judgment respectively. But MR. SMITH: Will you clarify the 22 unspecified line of cases that -- which you found 23 persuasive identifying which cases you were relying on? 24 THE COURT: My order stands. That'll 25 conclude this hearing. 21

22 1 MR. SMITH: So you're denying my motion for 2 a clarification. 3 THE COURT: I'm denying your motion for 4 clarification. 5 MR. SMITH: Thank you, Judge. 6 THE COURT: I'll get the order drafted and 7 get it out to the courthouse in St. Charles. I don't 8 have access to the e-filing, so I got to do it the 9 old-fashioned way, but it will get there. 10 MR. HOWARD: Thank you, Judge. 11 THE COURT: Thank you, Mr. Howard. 12 MR. SMITH: Judge, we still have another 13 matter on. 14 THE COURT: Pardon? 15 MR. SMITH: We still have another matter on. 16 THE COURT: What's that? 17 MR. SMITH: Judge, you're also assigned to 18 the cause of O O5O2, which is a preliminary 19 injunction case. I properly noticed it up. 20 THE COURT: I don't believe I have the 21 pleadings on that case. 22 MR. SMITH: I properly noticed it up. 23 MR. HOWARD: Judge, if I may? 24 THE COURT: You may. 25 MR. HOWARD: Okay. That is in October of 22

23 I on behalf of Ms. Smith filed a motion for 2 temporary restraining order and preliminary injunction. 3 THE COURT: Okay. 4 MR. HOWARD: And the basis -- I have a -- 5 You don't have any of that file with you. 6 THE COURT: Yeah. I don't have any 7 documentation right in front of me right now. 8 MR. HOWARD: Yeah. I have a copy of -- I 9 guess what Mr. Smith is saying is he'd like to take up my 10 motion for temporary restraining order? 11 MR. SMITH: No, your Honor. I'm asserting 12 that you do not have subject matter jurisdiction in that 13 cause. 14 THE COURT: Oh. Okay. Why not? 15 MR. SMITH: Because the initial judgment 16 and decree of dissolution is void by operation of law as 17 a -- as it violates the fair -- the fundamental due 18 process requirement of impartiality proven by a court a judgment issued by a court of competent jurisdiction 20 after a contested hearing on petitions on out -- on a 21 petition for change of judge, a cause which allegations 22 were controverted and set before a separate judge for the 23 determination of the truth or falsity of those 24 accusations -- allegations. That judgment was sustained 25 in whole. 23

24 1 By operation of law you cannot have 2 impartiality and bias in the judge at the same time. 3 They are antithetical. And that's -- that's -- that's my 4 argument. 5 THE COURT: Okay. 6 MR. SMITH: And you cannot because that 7 judgment is void -- 8 THE COURT: So you want me to dismiss that 9 as well. Or dismiss -- You want me to dismiss the MR. SMITH: There's another -- There's 11 another thing, Judge, too. Somehow that -- I was there 12 when Mr. Howard filed -- filed his applications. It was 13 the same day I filed a petition for declaratory judgment. 14 We were both in court. He served me with copies of it. 15 Judge Demarce was on the bench, and he said, "I'm not 16 sure that I -- as a specially assigned judge that I have 17 jurisdiction to do this." All right? 18 Mr. Howard then said, "Well, I'm going to go to 19 the duty judge." Mr. Howard left. The judge left. Both 20 go back into chambers. I tried to get back there. 21 Prevented. I found a local attorney. Said, "Could you 22 go back there, find out what's going on?" He said that 23 the duty judge was going to recuse herself and that they 24 were talking. 25 I waited. No idea what was going on. No idea 24

25 1 who was talking to him. Mr. Howard comes back, and I 2 said, "What happened?" He goes, "The judge'll tell you." 3 "What happened back there?" "The judge'll tell you." 4 Well, the judge came in and said, well, it 5 looks like, you know, there's going to be an application 6 for a -- an assignment of a judge. What -- I -- I had 7 to ask him, I said, "Judge, were there any discussions at 8 which the -- Mr. Howard, yourself were present? Even if 9 they were about procedural matters." And Judge said, 10 "Yes. There were discussions that took place." Thank 11 you. Now that's an ex-parte communication, Judge. It 12 is. 13 Next day Judge Demarce gets appointed. With no 14 notice to me, Mr. -- I don't know. Did you even go up 15 to his courtroom, or did he just do it all by fax? 16 Judge enters a temporary restraining order. 17 When I get notice of it, I disqualify him. That's the 18 way the case is set -- has sat since then. Except here's 19 the strange thing. On October 6th when he filed it, the 20 docket read October 6th. When I went to check it after 21 the assignment, it said October 7th. I asked the court 22 clerk, I said, "Hey, this is filed on the 6th, not the 23 7th." I said, "You ought to get the judge to change 24 that." 25 Now I -- I thought it was a non-discretionary 25

26 1 duty to accurately record by clerk, accurately record 2 filings, dates, times, and places. I had no idea how 3 this -- how all of a sudden it got over to 7th. So I'd 4 like you to find out why and correct the date. 5 THE COURT: I don't know. You're asking 6 me? 7 MR. SMITH: They told -- The clerk told me 8 that I would have to get a judge's order to change that. 9 Now Mr. Howard was there. 10 Mr. Howard, what date did you file your 11 pleadings? 12 MR. HOWARD: Would you like me to respond, 13 your Honor? 14 THE COURT: Go ahead. Let's get this over 15 with. 16 MR. HOWARD: Okay. Here's my understanding 17 and my recollection of what took place, Judge, is that on 18 October 6th, Let me back up. Give you a little 19 bit of history. Judge Demarce entered a judgment of 20 contempt. Mr. Smith got on the stand and testified in 21 his -- in a motion regarding rehearing or setting aside 22 the judgment of contempt, his offer to purge. And at 23 that time he testified that he was receiving his 24 retirement and he offered to deposit those moneys that he 25 was receiving into the registry of the court for a 26

27 1 determination of what each party's interest was. Because 2 he worked for the St. Charles County he has a Lager's 3 pension, and that's not divisible by QUADRO or any other 4 method. So he gets all the money. I can't do an 5 assignment of it. I can't do anything. Because he gets 6 the money. And then it's his responsibility to divide it 7 up. 8 He's received probably at this point in time -- 9 I don't have the exact number, but it's -- it's somewhere 10 between, I think, eighty and a hundred thousand dollars 11 since July of So he went to court and he offered 12 to do that. 13 I at -- on October 6th--I'm not sure what the 14 case was on for hearing that day--came to file and the 15 clerk, just like your clerk, was sitting there and she 16 file-stamped the items. And then Mr. -- And I tried to 17 take it up with Judge Demarce at that time. I believe 18 Mr. Smith said, "Judge, you're not specially assigned to 19 this case." And throughout the history of -- of the 20 litigation with Mr. Smith he has asserted that a judge is 21 specially assigned for one particular task and if you 22 file anything outside of that particular initial 23 pleadings the Judge is not specially assigned. 24 So what Judge Demarce did was he said, "Okay. 25 I'm not sure I'm specially assigned. Let's -- We need 27

28 1 to get a -- get a special assignment." I under 2 Rule 92.O2 believe that I can attempt to get a temporary 3 restraining order without notice, and so what I did was I 4 went to Judge Swann, no, Division 9, who was the duty 5 judge that day, and said "Your Honor, I would like to get 6 a temporary restraining order without notice," and 7 presented my reason why notice would be -- all the 8 pleadings that I needed, the affidavit regarding notice, 9 the petition for bond, everything. 10 Judge Swann stated, my recollection, that 11 because Mr. Smith was formerly the attorney for the 12 juvenile office she believed that all sitting judges in 13 the county of St. Charles were recused -- disqualified 14 from any proceedings and so that we would need to get a 15 specially assigned judge. So I believe that -- So she 16 either filled out something or did something, and then it 17 went to the clerk of the presiding judge, who I believe 18 was Judge House at the time, who called the Supreme Court 19 to get a special set -- I think she faxed something in, 20 whatever -- whatever the clerks have to do, and I'm not 21 sure what that is, Judge, to get a judge specially 22 assigned. 23 The clerk wasn't -- or the judge who does that 24 at the Supreme Court wasn't available that date, so they 25 handed me all my paperwork back until a judge was 28

29 1 specially assigned. The next day Judge Demarce was 2 specially assigned, and so I refiled my paperwork. They 3 sent it up to Judge Demarce up in Scotland County, the 4 petition as well as the temporary restraining order which 5 Judge Demarce entered on October 7, My copies show 6 that the -- the clerk scratched out and initialed from 7 October 6th to the 7th. I don't know that's that 8 relevant on the day that my motion -- affidavit and 9 motion was filed. 10 The judge entered a temporary restraining order 11 directing Mr. Smith deposit all this approximately eighty 12 to a hundred thousand dollars into the -- the registry of 13 the court which is what Judge Demarce heard Mr. Smith 14 testify to. Mr. Smith promptly took a change of judge, 15 and this was assigned to you, but because temporary 16 restraining orders are only good for I think it's fifteen 17 days and they're -- they're no longer valid, 18 unfortunately your Honor wasn't assigned within fifteen 19 days and so, although this was assigned to you and I 20 guess my -- my motions for a preliminary injunction and 21 temporary restraining order are validly before the court 22 and I believe Mr. Smith has called it up for hearing 23 today, I believe your Honor does have jurisdiction of 24 this and because it is with Mr. Smith's consent that this 25 be taken up, I would ask that -- I -- I can give you a 29

30 1 copy of my -- my motion--that the preliminary injunction 2 be entered directing him to do what he testified to on 3 the stand that he was going to do, which is deposit all 4 these moneys that he has received into the registry of 5 the -- of the court for it to be divided up and for 6 Ms. Smith to get her portion that was awarded to her in 7 the judgment and decree of dissolution. 8 I believe what Mr. Smith is doing is he's 9 squandering those assets, he's hiding those assets, and, 10 ultimately speaking, that's why I filed the motion for 11 preliminary injunction, just to have Mr. Smith do what he 12 testified that he was going to do. 13 THE COURT: Any response? 14 MR. SMITH: Yes. I made an offer to put 15 the moneys in to -- on the basis that we stay the 16 proceedings, go to a declaratory judgment petition, and 17 determine whether or not Demarce -- Judge Demarce's 18 jurisdiction -- whether he had subject matter 19 jurisdiction based upon the voidness of judge Frawley's 20 divorce decree. I'm asserting to you as fact, Judge, and 21 law that that is void by operation of law. It is void 22 not because of what Judge did or didn't do. It's void 23 because a court of competent jurisdiction after a full 24 and fair adversarial hearing found him to be biased, 25 prejudiced and found him to have manipulated the facts in 30

31 1 a manner detrimental to me. Those are instances of bias. 2 With -- 3 You have avoided mentioning the judgment 4 sustaining the petition for -- for change of judge for 5 cause. It's nowhere in your orders. Okay? I'm 6 asserting to you that it has all of the necessary 7 requisites of a valid judgment. It is entitled to -- It 8 is subject to res judicata, and it -- I can use 9 collateral estoppel in an affirmative way to -- to 10 determine -- to determine, to show, conclusively, that 11 this lacks a sine qua non of a valid judgment. 12 A judgment is -- A valid judgment has parts. 13 First is that there has to be a competent court. Second, 14 there has to be minimum due process; that is, notice 15 adequately addressed to advise them and an opportunity to 16 be heard, to be heard before a fair and impartial 17 tribunal. Without any of these -- If one of these 18 factors is missing, the judgment is void. Not voidable. 19 It's void. Where a judgment can be determined upon the 20 face of the record to be void, it is entitled to no 21 respect. 22 Judge Demarce's jurisdiction -- This is really 23 just one continuous jurisdiction. Because there is no 24 independent jurisdiction for a motion to modify absent a 25 valid judgment and decree of dissolution. Again, there 31

32 1 would be no basis for a contempt motion for the same 2 thing, because it's void. No effect. 3 I offered the thirty-six thousand dollars 4 ($36,000) twice actually. I offered it first at our 5 rehearing after his initial judgment. The judge rejected 6 it. He said that would take too long. I offered it 7 again on the conditions that these enforcement 8 proceedings stay, be stayed. Let's go determine whether 9 or not this is valid or invalid. Now that was rejected. 10 Mr. Howard wants to know where the money whether I had any of that money left. No. I don't. I 12 did not squander it, Judge. I used -- I am incapable of 13 caring for myself by myself. I used that money to move 14 my daughter back from California. Her fiance, her 15 boyfriend then but fiance, followed soon after. They 16 needed a place to stay. I helped them set up, get -- get 17 their apartment. They both became employed. I found a 18 house where, if we all chipped in, we could live 19 together. 20 My children manage my finances. My children 21 help me get out of bed. My children tell me when it's 22 dangerous for me to leave. I think that -- that because 23 I -- I have a -- a mental disease that there is some 24 confusion as to what I'm capable and what I'm not capable 25 of, and all that means is, yes, I have a mental disease 32

33 1 and it -- and it's affective disease and what people call 2 passionate I call being unable to control my emotions. 3 But it doesn't -- My -- my cognitive functions 4 are not impaired. You know, I remember everything that I 5 did. I know what the law is. I practiced law for 6 twenty-five years. I practiced it very well. And maybe 7 I am holding people to too high of an ethical standard. 8 You know, it's the ethical standard I -- I held myself 9 to. It was the one that was demanded by Ray Grush who's 10 the juvenile officer I worked under. And it was one that 11 was demanded by the court. 12 When I got Judge Frawley's judgment, I offered 13 to resign, because a court cannot have a lawyer 14 representing them who -- who lies. And there's no other 15 way to read that, Judge. It's -- you know, it's 16 fabricated, but it's clearly intended to show I'm 17 untruthful. 18 I tried to appeal it. While I believed at the 19 time that I was competent to do it, turns out I wasn't. 20 My -- my disease was progressing. Few days after that I 21 attempted suicide. And the reason for it is because I 22 actually believe in the law to a higher sense than I 23 think a lot of practitioners do. You know, part of it 24 comes from being dealing with juvenile cases where you 25 have the most extreme intrusion by the state into the 33

34 1 most fundamental of -- of all relationships, familial. 2 And then -- then you have the high standards of -- of 3 criminal procedure, you know, the obligations of a 4 prosecutor. At the same time I have to make sure that 5 the juvenile officer and their attorneys--i do not plead 6 things. They were all drawn up by -- by the deputy 7 juvenile officer--to ensure that their cases were 8 factually and legally sufficient that if my -- any -- any 9 of the deputies or the juvenile officer stepped out of 10 bounds I had to call them back. There were occasions 11 when I refused to do that. That's the level of ethics 12 that I bring to the table. 13 When I saw this judgment, Judge, and saw what 14 Judge did, you know, it --it's -- it triggered whatever 15 ultimately happened. So THE COURT: All right. Well, candidly, I 17 don't have the pleadings in that case in front of me, and 18 I'm not -- I'm not prepared to try to rule on that today. 19 It sound like we're needing some evidentiary hearing as 20 to what the -- what the amount of money we're actually 21 talking about is and what -- going forward what it might 22 be. 23 MR. HOWARD: That's what would be required, 24 and what Mr. Smith had offered was to put the money into 25 the registry of the court and then have the evidentiary 34

35 1 hearing. What he testified to on the stand is I'm not a 2 CP -- equivalently, I'm not a CPA, I don't know how to 3 calculate this, so my motion just asked those moneys be 4 deposited into the registries of the court to keep them 5 safeguarded, and it was tailored to the amount of money 6 according to the Missouri local government that he had -- 7 had received. 8 Your Honor, I believe that it's my -- my 9 motion. I'm not -- You know, to be quite candid, Judge, 10 because of the -- the duration in time I kind of let it 11 lapse because -- I wasn't prosecuting it because the THE COURT: Well, it's clear that the 13 temporary restraining order was -- has lapsed. 14 MR. HOWARD: And because of the desire to 15 keep that safeguarded Mr. Smith has already stated that 16 he violated the court order, the judgment, by spending 17 that money on his own needs. I believe that the 18 appropriate course of action for me would be to file a 19 motion for contempt, because clearly nothing that happens 20 in -- Temporary restraining order is designed to prevent 21 someone from doing something. It's already been done. 22 So I believe my course of action is file a motion for 23 contempt, so if you need me to THE COURT: The case itself is still alive. 25 It's your temporary -- the temporary restraining order 35

36 1 is -- 2 MR. HOWARD: Yeah. And I'm not sure -- 3 THE COURT: -- is lapsed. 4 MR. HOWARD: -- that the case is even 5 relevant anymore, Judge, because I can't prevent him from 6 doing something that he's already done. So, you know, if 7 you need me to dismiss that for -- or without prejudice 8 or you dismiss it for failure to prosecute, you know, 9 I -- I don't want to belabor the court with things that 10 really aren't validly before the judge. 11 THE COURT: I think that will be that I I will dismiss your -- What's that case number again? 13 MR. HOWARD: It's 0511-FC THE COURT: Okay. And that was the MR. HOWARD: It was a motion for temporary 16 restraining order and preliminary injunction. 17 THE COURT: I will -- I will get an order 18 dismissing that on course, motion for failure to 19 prosecute. 20 MR. SMITH: Okay. We still have the 21 question of the correct filing date. 22 THE COURT: I don't think it's -- Well, 23 since -- Filing date, I guess, was October 6. The 24 assignment date was October MR. SMITH: Correct. 36

37 1 THE COURT: If Mr. Howard's information is 2 correct. And I don't know that it makes a big 3 difference, but maybe it does to you in some ways. 4 MR. SMITH: Judge, it's just -- it's just 5 that I like things to reflect what they reflect. 6 THE COURT: Well, then -- 7 MR. SMITH: And what they are. 8 THE COURT: That's fine. I -- Apparently 9 there's no con -- there's no -- it's uncontroverted 10 that -- Mr. Howard, I think you -- you said it, too. 11 That the -- the ball started rolling on the 6th. 12 MR. SMITH: Mm-hm. 13 THE COURT: And due to the unavailability 14 of anybody in Jeff City to do anything, the actual 15 assigning of a judge, Demarce, took place on the 7th. 16 MR. SMITH: Correct. 17 THE COURT: I guess that explains the 18 discrepancy. 19 MR. SMITH: Right. And -- and since you're 20 dismissing it, it's -- it's moot. 21 THE COURT: Kind of moot, but MR. SMITH: You know? 23 THE COURT: At least we know where -- At 24 least we have some idea where everybody stands. 25 MR. SMITH: Mm-hm. 37

38 1 THE COURT: Okay. Thank you, gentlemen. 2 That'll conclude this hearing. 3 MR. HOWARD: Thank you, Judge. 4 MR. SMITH: Judge, may -- may we approach? 5 THE COURT: (Inaudible). 6 * * * * *

39 1 REPORTER'S CERTIFICATE 2 I, Robert O. Hull, Jr., Certified Court 3 Reporter within and for the State of Missouri, do hereby 4 certify that I transcribed to the best of my ability from 5 CD all of the proceedings had and entered of record in 6 this cause and, further, that the foregoing pages contain 7 an accurate transcription of those proceedings IN WITNESS WHEREOF, I have hereunto subscribed 13 my name on this 7th day of August, Robert O. Hull, Jr., CCR #

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