Conference quokka::non_custodial_parents

184.0. "A Call to Arms" by PENUTS::GWILSON () Wed Dec 04 1991 11:56

   I am asking that you please take the time to read the following
court order and motion for reconsideration.  The initial text is my
opinion based on what I have heard or read about the case.

  This involves a long bitter divorce that may be riddled with
abuse of power by a government official in order to receive favorable
treatment in the court.  The plaintiff in this case is the Director of
Personnel for the State of NH.  There are a couple of points that are worthy
of mention that are not noted in the motion.

   The Guardian ad Litem in this case told the defendant that she was
going to recommend joint physical custody.  Something apparently changed
her mind.  Immediately following the guardian ad litem recommending sole
custody to the mother, the guardian was appointed to an important
state government position.

   The NH State Employees Association is currently attempting to oust
the plaintiff in this case from her position.  Their complaint is
basically that she rewrote policies in order to centralize power to
herself.

   Domestic cases are normally heard by Marital Masters in NH.
With the exception of one hearing, the numerous hearings in this case
have been heard before a judge.
 
   The Chief Staff Attorney of the Division of Human Services
got personally involved in this case.  To the best of my knowledge,
the Chief Staff Attorney does not normally act in this role.

   The defendant in this case had a net worth in the millions
prior to the divorce, but now is not able to legally raise a meager
five thousand dollars and his income after child support is below the
federal poverty level.

   It would be greatly appreciated if you would take the time to contact
the officials and newspapers mentioned below to bring this travesty to
light.  Alternately, please respond to me via e-mail and I will forward
responses to these people.  If replying by e-mail, please include your
Postal address.  Feel free to contact me if you need more details.

Joseph DiClarico			William McCain
Administrative Head of			RFD 1, Box 214A
Superior Court				Fremont N.H. 03044
99 No. State Street			Chairman, Children & Youth
Concord N.H. 03301			Services

Governor Judd Gregg			Irene Domini
Governor's Office			State Representative
State House				P.O. Box 241 Borroughs Road
Concord N.H. 03301			Charlestown N.H. 03603

Manchester Union Leader			Nashua Telegraph
100 William Loeb Drive			17 Executive Drive
P.O. Box 9555				Nashua N.H. 03051
Manchester N.H. 03108

Boston Globe of NH			Concord Monitor
1650 Elm Street				P.O. Box 1177
Manchester N.H. 03104			Concord N.H. 03302


-------------------------------------------------------------------------------

                       THE  STATE OF NEW HAMPSHIRE

      HILLSBOROUGH,SS.    	   			SUPERIOR COURT

                           Virginia A. Vogel
                                   V.
                            Edward P. Vogel
                               87-M-1277

                   ORDER ON DIVISION'S MOTION FOR CONTEMPT

             This matter came on before the undersigned on November
	5, 1991 for show cause hearing requested by the Division of
	Human Services, the thrust of which involves the Division's
	assertion that the defendant has failed to abide by the court's
	order of February 22, 1991 (Barry, J.)

	     Defendant's motion to continue filed on the date of this
	hearing was DENIED as untimely filed (Rule of Superior Court
	# 49).

	     The evidence adduced at hearing establishes that defendant
	has failed to abide by the February 22 order by failing to make
	monthly payments of child support (para. #7), and failure to
	make diligent efforts to secure employment to enable him to
	meet his child support obligations (para. #12).

	     The defendant has been making payments of child support
	in the amount of $200.00 per month, making the current arrearages
	on account thereof in the amount of $15,832.00. His assertion
	that he has complied with the court's order by inquiring about
	employment at various McDonald's restaurants is simply
	ludricrous. Likewise, his contention that his continuous
	attempts to obtain additional jobs for the company of which
	he is the principal satisfies the terms and conditions of Judge
	Barry's order insults this court's intelligence.

	     Basically, the defendant's evidence establishes that his
	company, given the current economic atmosphere, is unable to
	sustain his court-ordered obligations and he has done little
	or nothing to seek alternative means to do so.

	     A review of the voluminous file in this case amply
	demonstrates that defendant is fighting a quixotic crusade rather
	than utilizing his evident talents to support his three children.
	It appears clear that defendant is spending an excessive amount
	of time and effort litigating and relitigating his divorce
	proceedings. Even his own employee, unsolicited, admits this
	litigation is intefering with defendant's company's business
	enterprise.

	     The defendant is found in contempt for his failure to comply
	with the orders of this court.  He is accordingly ordered to
	purge himself of contempt by the payment to the Division, not
	later than January 2, 1992, of the sum of $5,000.00 toward the
	arrears, or mittimus to issue upon request of the Division for
	his incarceration at the Hillsborough County Correctional
	facility for a period of ninety (90) days unless previously
	purged of contempt.
	    In addition, the defendant is ordered to comply with all
	the remaining terms and provisions of the court's orders.
	So Ordered

	Date			Walter L. Murphy, Presiding Justice


-------------------------------------------------------------------------------

                         STATE OF NEW HAMPSHIRE

      HILLSBOROUGH,SS.       SUPERIOR COURT          NOVEMBER  TERM

                           Virginia A. Vogel
                                   V.
                            Edward P. Vogel
                               87-M-1277

              MOTION FOR RECONSIDERATION AND CLARIFICATION


           NOW COMES, Edward P. Vogel, pro se, defendant in the

      above captioned matter and respectfully requests this

      Honorable Court reconsider and clarify it's order of Nov.

      8,1991 and as his reasons states the following:


           1. Defendant requests this court review the file and

      take note of the following evidence contained therein:

               A.  Plaintiff filed for divorce in July 1987 after
           extended extramarital affair with her former
           supervisor, Jack (John) Melton named as co-respondent,

               B.  In October, 1987 defendant suffered heart
           attack brought on by stress of divorce and deceit of
           plaintiff and was by doctor's orders held from work
           until May, 1988.  Defendant was diagnosed as having
           SEVERE arteriosclerotic coronary artery disease
           after exploritory surgical angiogram.  This disease
           continues to progress and is exacerbated by stress,

               C. Final Hearing was held in October, 1989 after
           which the court (Dalianis J.) found contrary to all
           unrefuted medical evidence that defendant was
           physically fit because he "appears fit".  As a result
           of this hearing, defendant's child support obligation
           was established based on "potential", not on actual
           income.
                   Due to pain and shortness of breath, defendant



           underwent exploratory surgical angiogram in March 1990,
           (see doctor's report attached) which showed defendant's
           disease had progressed substantially and required
           emergency double surgical balloon angioplasty in March
           1990.  Operation was only 50% successful.

               D.  Indications are that defendant's condition has
           again deteriorated as at this time he regularly
           experiences pain in his left arm and chest when under
           stress or when he is physically active.

           2. Defendant's Moton to Cancel Hearing  -  Defendant
      respectfully objects to this court's ruling denying this
      motion as he was not given sufficient time to prepare a
      a defense (2 working days) nor was he given any indication
      as to the specific subject of the hearing.  Without proper
      notice of subject of hearing, defendant was unable to
      prepare a proper defense. (See Morphy v Morphy 112  N.H.
      507 (1972) and V.S.H. Realty Inc. v City of Rochester
      118 N.H. 778 (1979)).
           Kathleen Kerr alleges that she sent defendant letter
      stating subject of hearing.  Defendant states here under
      oath that he did NOT receive said letter and that upon
      calling clerk of court's office to inquire, he was told
      that N.H.D.H.S. is able to get hearings on request without
      going through normal procedure and that they didn't know
      more about the hearing than the notice indicated.
           Furthermore, defendant alleges that upon  information
      and belief, plaintiff has conspired with long time friend
      and political cronie Robert Pliskin, Director  N.H.D.H.S.,
      to innapropriately expend state funds to collect money on
      her behalf which is provided for in its entirety in Final
      Decree.  While under oath, plaintiff admitted to having
      discussed this case with said Robert Pliskin.  Further
      examination on this alleged conspiracy was prevented by


      James Barry (J.) upon plaintiff's immediate withdrawal of
      motion under discussion.

           Defendant further alleges that Kathleen Kerr, H.H.D.H.S.
      has also participated in this conspiracy and as evidence
      in support thereof, she has failed to follow standard
      N.H.D.H.S. procedures, has threatened defendant and has
      relentlessly harassed defendant when all evidence has
      shown that despite substantial effort on his part and
      due to circumstances beyond his control, he has been
      unable to meet court ordered child support which is based
      on "potential income".

           3.  Defendant notes an error in this Honorable Court's
      paragraph #4.  Defendant submitted evidence that was not
      objected to that showed defendant's payments to N.H.D.H.S.
      average $397.69/month with all but  $93.99/month being
      applied to child support.  It should be noted that by
      defendant making payments in this amount, his spendable
      income is brought substantially below the minimum self
      support reserve as prescribed by RSA 458-C.  It should
      be further noted that given plaintiff's income of over
      $63,000.00/year the children are in no danger of being
      deprived of anything.
           Defendant further objects to this court's  finding
      of arrearages as the establishment of the current child
      support order is not and has never been based on actual
      income of defendant.  All evidence and testimony at this
      and all previous hearings have shown that defendant has
      continually put forth substantial effort to earn income in
      his profession of almost 20 years.  Given defendant's medical
      limitations, the current state of the economy and the


      continuous harassment of plaintiff and her political cronies
      in litigating this divorce the award of this arrearage is
      ludicrous.

           4.  In paragraph #4 of this court's order, refrence is
      made to defendant's inquiry regarding employment at
      McDonalds.  Defendant states that unknown to this court,
      plaintiff's attorney, T. Bamberger, demanded that defendant
      inquire at McDonalds at the  Feb. 22,1991 hearing.
      Defendant complied with that demand and presented his
      findings precisely to show the absurdity of T.Bamberger's
      demand.
           However, defendant presented further information and
      testimony that showed defendant has attempted to organize,
      finance and open a restaurant with others to provide
      supplemental income (testimony J.Blom) and has further
      attempted to obtain paralegal work and has attended by
      audit - law school to that end.  In addition, defendant has
      investigated mail order marketing and various network
      marketing programs including, Amway, NuSkin and Consumer
      Buyline.  Upon further reflection, defendant also
      applied for position of Regional Sales Manager with
      American Building Systems however was rejected.  These
      efforts clearly show defendant to be in compliance with
      court's order of Feb. 22, 1991 (Barry,J).
           Defendant also questions the legality of the Feb.22
      order which obligates defendant to abandon his career of
      almost 20 years because it is not producing sufficient
      income at this time to satisfy an arbitrary  potential
      income set for defendant, especially given the defendant's
      heart disease, the current economic recession and the


      constant harassment by plaintiff and N.H.D.H.S.  Upon
      careful consideration, defendant believes that this order
      violates defendant's rights protected by the 13th and 14th
      Amendments of the U.S. Constitution.

           Furthermore, this court should be aware that both
      Parcel A and Parcel B , Bow (see Final Order) are primarily
      dependent on defendant's business for their maintainance as
      plaintiff has repeatedly refused to pay her share of mortgage
      or taxes based on court ordered division of property  (see
      Final order).

           5.  This court in paragraph 5 of it's order found that,
      "given the current economic atmosphere, defendant's
      company is unable to sustain his court-ordered obligations
      and he has done little or nothing to seek altrnative means
      to do so."  This finding is in part contrary to the
      evidence.  It is true that the economic atmosphere is a
      disasterous.  However defendant in addition to testimony at
      the hearing has enumerated his efforts in paragraph #3 this
      motion.  Furthermore, there was testimony (L.  Bourdon and
      M.Mayo) as well as defendant that defendant works in excess
      of SO hours per week in attempting to meet court-ordered
      obligations.  Given defendant's medical history and the
      fact that at present he is in almost constant pain, this
      court's finding of insufficient effort is an outrageous
      asbuse of discretion.  Defendant notes further that the
      N.H. Supreme Court in Bradley v. Bradley 92  N.H. 70 has
      found that "inability to meet a court order is grounds
      to change it".
           Furthermore, defendant is protected from such
      abuse not only by statutory law, RSA 4S8-C but additionally



      by liberty and privacy provisions of the 14th Amend.  U.S.
      Const. as well as the involuntary servitude provision of the
      13th Amend., U.S. Const.

            6.  In paragraph #6, this court is critical of
      defendant's attempts to defend himself.  First, if this
      court reviews the record, it will find that defendant's
      efforts are primarily defensive in nature.  To hold against
      or deny defendant this right to a defense is contrary to the
      basic precepts of American jurisprudence.  Defendant has
      repeatedly requested a court appointed attorney as he is
      unable to afford one (especially pertinent in contempt
      hearings) and has been repeatedly denied.  Defendant has
      applied to the pro bono service and has been denied.
      Defendant has applied to the Legal Clinic at Franklin Pierce
      College and has been denied and told they only represent
      women.  Therefore, defendant is left with no alternative
      but to defend himself.  It should be noted that the two
      Supreme Court appeals filed by defendant have both been
      accepted.  Defendant seeks only a fair order with which he is
      able to comply.
            With regard to the unsolicited statement by defendant's
      employee, M. Mayo, said witness has found this court's
      interpetation of his remark to be improper and taken out
      of context and has provided an affidavit to that effect,
      (see attached M.Mayo affidavit).

           7.  Defendant provided this court evidence and
      testimony that should defendant change his status from
      self employed to employee as per Feb. 22 order,  I.R.S.
      will attach defendant's renumeration in its entirety


      excepting $462.50 Per Month to satisfy tax liabilities
      which were caused in part by Final Decree division of
      corporate assets without allowing for corporate
      obligations.  Therefore, given this  circumstance, should
      defendant obtain employee status as per Feb. 22 order,
      the net effect will be a maximum child support under
      RSA 458-C of $5O.00/month.  Defendant points out that this
      in substantially 1ess  than defendant has been able to
      provide for his children under the current

           8. In paragraph #7 of it's order, this court finds
      defendant in contempt and orders payment of $5,000.00 or
      face incarceration for 90 days.
           This order is improper, outrageous, contrary to the
      evidence, illegal and unconstitutional.
           First - As evidenced by witnesses, J.Blom, M.Mayo, L.
      Bourdon and defendant, defendant has made  substantial
      effort to comply with court's order of Feb.22,1991 as well
      as all other court orders and should not be found in
      contempt.
           Second - In paragraph #S of court's order, the court
      has found that defendant's company is not earning sufficient
      money to pay the court ordered child support.  The court has
      made no finding that defendant is able to pay $5,000.00 and
      such a finding is necessary or this order is improper.
      Defendant is unable to comply as he does not have access to
      such funds within the law.  It is an outrageous abuse of
      discretion to place the defendant in a position where
      under threat of jail he is forced to choose between jail
      and theft.
         One further possibility is that this court's order is

      an attempt to extort money from defendant's friends and
      relatives.  The United States Supreme Court commented on
      this practice:

            "It should not be necessary to say that it would be a
        flagrant abuse of process to issue such an order to exert
        pressure on friends and relatives to ransom the accused
        party from being jailed." Maggio v. Zeitz, 333 U.S. 56,64
        (1948) Family Law Vol.  III, Douglas pg. 363.

           Third - Civil Contempt/ Criminal Contempt - This
      court's order has not specified whether defendant has been
      found in civil or criminal contempt.  If this court has found
      defendant to be in civil contempt, determined sentences by
      law are improper.  The concept of civil contempt is coersive
      in nature and should be used as a tool to force compliance.
      However, in order to be valid, defendant must be found to
      have available to him the ability to comply and thus purge
      himself.  There has been no such finding in this case, nor
      could there be as defendant does not have $5,000.00 available
      to him legally.  Therefore, it follows that this order is
      improper under civil contempt.

           If however, defendant has been found in criminal
      contempt, the law is clear that defendant should have been
      offered and supplied an attorney and is entitled to a jury
      trial and that serving said sentence will purge any debt
      associated therewith.  Therefore, it follows that in as
      much as defendant's constitutional rights to due process were
      not respected, this order is improper under civil contempt.

           9. Finally, this court is obligated to act in the best
      interest of the children.  This order in addition to denying
      reality, is neither in the best interest of the children or
      the parties.  If defendant is incarcerated, it is likely
         
      that defendant's business will be forced to close which will
      inturn likely cause the loss of Parcels A & B, Bow (See Final
      order) to tax sale and/or forclosure.  Upon release,
      defendant will be faced with uncompleted contracts
      (currently signed) and no funds or facilities to complete
      said contracts.  This will likely result in a number of
      civil suits against defendant which he is likely to loose.
      Defendant will then be totally unemployed, ineledgible for
      unemployment insurance, and given his age and health
      combined with the state of the economy, unemployable.

           WHEREFORE, defendant prays this Honorable Court
      reconsider and clarify its order in light of the above
      and:

           A. Reconsider denial of defendant's Motion To Cancel
      Hearing (due to improper notice).

           B.  Vacate the finding of contempt, and associated
      penalties,

           C.  order a hearing on defendant's Motion To Modify
      child Support,

           D.  Stay all further action by N.H.D.H.S. pending a
      hearing on defendant's Motion To Modify Child Support,

           E.  clarify this courts ruling regarding civil/criminal
      contempt as outlined in this motion - paragraph #6,
           or in the alternative,

           F.  Stay implementation of this order pending
      defendant's appeal to N.H. Supreme Court and U.S. District
      Court on constitutional issues,

           G.  what ever else this Honorable court deems
      reasonable and Just.



       Dated: November 27, 1991         Respectfully submitted,



                                            Edward P. Vogel, pro se
                                            136 River Road,
                                            Bow, N.H. 03304
                                            W  -  (603)224-7877
                                            H  -  (603)228-3575


STATE OF NEW HAMPSHIRE,SS
HILLBOROUGH,SS:

     On this 27th day of November, 1991, personally appeard
before me, Edward P. Vogel, known to me or satisfactorily
proven, who swore that the foregoing statements are the
truth to the best of his knowledge and belief.



                                 Notary/Justice of Peace


                         CERTIFICATION


      I hereby certify that a copy of the foregoing Motion
 For Reconsideration And Clarification has been mailed this
 27th day of November to Thomas Bambergr , Esq., and Kathleen
 Kerr, Esq.



                                  Edward P. Vogel


               Concord Clinic  - A Division of The Hitchcock Clinic
               279 Pleasant Street . Concord, New Hampshire 03301



     March 9, 1990




     RE:  Edward Vogel    DOB:  10/20/45

     To Whom It May Concern:

     Edward Vogel underwent cardiac catherization at Concord Hospital on
     March 8, 1990.

     He was found to have severe atherosclerotic coronary artery disease
     and was advised to avoid strenuous exertion until further
     management options have been considered.  These include coronary
     artery angioplasty and coronary bypass surgery.

     He was also advised to refrain from working until his cardiac
     status has improved.

     Sincerely,



   Patrick F. Cassell, M.D., F.A.C.C.

   PFC/lam







                         AFFIDAVIT OF MARK MAYO

           I, Mark D. Mayo of 137 Pine St., Boscawen,  N.H. 03303
      do swear that the following is the truth to the best of my
      knowledge and belief.
           I have known and worked for Mr. Edward P. Vogel since
      April, 1984 in his woodworking business.  During this time
      I have come to know with extensive detail various aspects
      of this business and certain aspects of divorce litigation
      involving Edward and Virginia Vogel.
           I testified at hearing on November O5,1991 at
      Hillsborough County Superior Court regarding this knowledge.
           Upon viewing a court order dated Nov. 8,1991 issued by
      Justice Walter L. Murphy, I noticed in paragraph 6 of this
      order that a comment I made under oath  was  mis-understood
      or mis-applied by the court and therefore will elaborate to
      rectify this mis-understanding.  It appears that the court
      has held against Mr. Vogel the fact that his attempts at
      defending himself has interfered with his business efforts.
      My continued observation of this situation indicates that
      it is not Mr. Vogel who has initiated most of the
      litigation but rather it is Mrs. Vogel and N.H.D.H.S. that
      have constantly harassed him to his detriment.  It is
      further my opinion based on observation and knowledge of
      his business that Mr. Vogel has made substantial efforts
      to make his business successful and support his children,
      especially in light of the economy and his health

       limitations.  As proof of this assertion, both of his
       competitors in this state have filed for bankruptcy and he
       has not.

            As a comparison, I am a divorced custodial parent of
       three children.  I have not received any child support from
       my ex-spouse since April 1990.  I have repeatedly applied
       to N.H.D.H.S. for assistance in collecting the court ordered
       child support and have to date only received illogical
       excuses.
            As a final note, it is further my opinion based on
       knowledge that if Mr. Vogel is incarcerated for 90 days
       as per the order, his company will be forced to close.
            I make the foregoing statement without coersion of
       any kind and believe the foregoing to be true.


       Dated: Nov. 27,1991
                                            Mark D. Mayo 



       STATE OF NEW HAMPSHIRE,
       HILLSBOROUGH,SS

            Personally appeared before me this 27th day of
       November, 1991 Mark D. Mayo, either known to me or
       satisfactorily proven who swore that the foregoing was true
       to the best of his knowledge and belief.



                                            NOTARY PUBLIC    

    Other problems with this case is/have been forced sales of Eds company
    to pay off her attornies. This is the way a man can make a living to
    suport his children. Taking away a mans tools to make a living is a
    travisty to justice. Taking away his means to suport himself, the
    children, and his ex with alimony/maintence. Force him to preform task
    other that the profession the he is best skilled at. 
    
    This case is another point made, that there still exist a prison for
    paupers. Prisons for pauper men.

>	     The evidence adduced at hearing establishes that defendant
>	has failed to abide by the February 22 order by failing to make
>	monthly payments of child support (para. #7), and failure to
>	make diligent efforts to secure employment to enable him to
>	meet his child support obligations (para. #12).
>
>	     The defendant has been making payments of child support
>	in the amount of $200.00 per month, making the current arrearages
>	on account thereof in the amount of $15,832.00. His assertion
>	that he has complied with the court's order by inquiring about
>	employment at various McDonald's restaurants is simply
>	ludricrous. Likewise, his contention that his continuous
>	attempts to obtain additional jobs for the company of which
>	he is the principal satisfies the terms and conditions of Judge
>	Barry's order insults this court's intelligence.

Amazing, 
How is it that my ex was allowed by the court to take the summer
of while I got to pay alimoney, I fail to see how this court has any
intelligence to insult. BTW I got a call from my GAL last night to
tell me opps! he's over buget by ....100% and I owe him, cause my
wife was unemployed when the order was written.