Corrupt Government Agencies? Say It Isn’t So!

By Randy Kluge

I had to laugh the other day when a Federal Employee in the Justice System said that corruption is exaggerated. I don’t consider myself a conspiracy theorist, I do not believe everyone is out to get me, I do not think every government agency is evil. I do believe that there are those whose sole goal appears to be the pursuit of power and wealth and that no matter the cost they will pursue those goals. I believe that even those with the best of intentions can be corrupted and that our state and federal government  is set up to fail due to lack of impartial over-site, consequence that are none existent,  and by allowing individuals to garner huge amounts of influence and power.

This is a full page add was taken out by the FBI I guess they are also exaggerating the Corruption in our Governments too, hmmm I guess I do finally agree with a government agency. But I would not get too excited I did call in saying I had some information and no one bothered to return the call.

 

Tallahassee has become a focal point in the FBI’s crackdown on public corruption.

The FBI in Jacksonville has launched a major initiative seeking the public’s help in identifying government officials who use their office for personal gain. Of particular interest to the FBI is potential fraud involving federal stimulus money.

The agency unveiled the Public Corruption Tip Line (1-888-722-1225) in February and said it would run advertisements in newspapers seeking tips. So far, the FBI has run one advertisement, which appeared on the front page of the Tallahassee Democrat.

Toni Chrabot, assistant special agent in charge of the FBI office in Jacksonville, said the FBI chose to run the ad in Tallahassee because it is the seat of power in Florida.

“Since it’s the capital and the home of Florida’s Legislature and numerous state agencies, any public corruption there has the potential to have consequences on a much broader scale than similar corruption in a smaller town or county,” said Chrabot, who is overseeing the office’s public-corruption program.

The ad ran under the heading, “Who’s representing you?” and had a “pay-to-play” logo with a slash through it. “Dishonest government officials aren’t just wasting your tax dollars,” the ad said. “They’re betraying your trust. Report public corruption to the FBI.”

The FBI made headlines recently after asking the city of Tallahassee for a copy of its purchasing policy and emails involving a federally funded grant for technology programs on the south side. The FBI doesn’t confirm or deny investigations; Chrabot discussed only in broad terms the FBI’s efforts to stamp out government corruption. The Democrat learned of the FBI’s interest in city documents from city officials.

Brad Ashwell, democracy advocate for the Florida Public Interest Research Group, said it’s reassuring that the federal government is using one of its most powerful crime-fighting tools — the FBI — to safeguard against corruption.

“It’s critical that we ensure public funds are used appropriately and effectively,” Ashwell said. “And any time there is fraud or public corruption, that’s a breach of the public trust that is corrosive to our democracy.”

Chrabot said the FBI relies on the public’s help in uncovering public corruption, which often occurs with private-sector accomplices. One reason is the secretive nature of bribes.

“For much of the investigation that the FBI does just in general, we are successful because of the help of the public,” she said. “And that’s true for counter-terrorism investigations, where the public has been so aware and reported suspicious activity. We benefit the same way when a citizen reports what they believe to be suspicious and corrupt activity. We depend on that.”

U.S. Attorney Pamela C. Marsh of the Northern District of Florida said in a written statement that public corruption is the top priority of the office.

“Greed and self-interest have no place in public service, and violations of the law will be thoroughly investigated and prosecuted,” Marsh said. “We look forward to joining with federal law enforcement and members of the concerned public in bringing to justice those who seek to line their own pockets at the expense of the public trust.”

FBI probes bribes, kickbacks

James Casey, special agent in charge of the FBI Jacksonville office, said in a written statement that most public officials are honest.

“But we encourage the public to help us hold accountable those who use their positions for their own enrichment and those contractors who misuse the taxpayers’ money,” Casey said.

Chrabot said some public officials who are motivated by power and greed accept or solicit bribes or receive kickbacks in exchange for official action or inaction.

“We call it quid pro quo — there’s something of value for something of value,” she said. “Historically, kickbacks have been as simple as the hand-to-hand exchange of money. The payment of bribes or kickbacks may take a very sophisticated track through companies, individuals and bank accounts or all three.”

She said the FBI is paying particular attention to fraud involving the $787- billion American Recovery and Reinvestment Act. The FBI said Florida is expected to receive nearly $20 billion in federal stimulus money and that contracts totaling nearly $10 billion have already been awarded.

“It’s a tremendous amount of money,” Chrabot said. “And our responsibility with regard to public corruption and the investigation of public corruption is to ensure that the American public receives what they’re supposed to receive.”

FBI working 3,500 corruption cases

The FBI in Jacksonville oversees offices in 40 Florida counties, from Duval County in the east to Escambia County in the west and Citrus, Sumter and Lake counties in the central part of the state.

Chrabot said more than 50 investigators have been assigned to public corruption in the FBI’s Southeast Region, which encompasses 11 field offices in Washington, D.C.; Richmond, Va.; Norfolk, Va.; Charlotte, N.C.; Columbia, S.C.; Baltimore; Atlanta; Jacksonville; Tampa; Miami and San Juan, Puerto Rico. Nationwide, 750 agents are assigned to public-corruption matters.

The FBI is involved in about 400 pending cases in some stage of investigation or prosecution in the Southeast Region and more than 3,500 pending cases nationally. The cases involve public corruption, fraud against the government and anti-trust matters, Chrabot said.

About 450 people have been charged with public-corruption crimes across the country since Oct. 1, 2010, Chrabot said. There have been more than 430 convictions over the same time period.

Chrabot said the FBI has received valuable information through the tip line and the FBI’s website. She said some tips have immediate value in existing cases, while others could have value in future cases.

“Anything we get, we share,” she said. “It’s one big FBI.”

Public corruption ‘unacceptable’

The FBI has a long history of investigating public corruption. Chrabot recalled the FBI’s ABSCAM investigation, which began in the late 1970s and led to the convictions of a senator and six congressmen caught on video accepting bribes. The operation was named after Abdul Enterprises, a fictitious company set up by the FBI to nab criminals involved in public corruption and organized crime.

In the early 1980s, Operation Greylord, named after wigs British judges wear, led to the indictments of more than 90 judges, lawyers and law-enforcement officers in the Chicago area on charges involving bribery, kickbacks, vote buying and fraud. Most of them were convicted.

In a recent public-corruption probe, the former chairman of the Jacksonville Port Authority, Tony Devaughn Nelson, was found guilty May 20 on 36 charges, including bribery and money laundering. Nelson is facing 20 years in prison.

Chrabot said public corruption is not a “victimless crime.”

“Public corruption is so far-reaching because it is a breach of the public trust,” she said. “Citizens should think it unacceptable, and they should report it if they have knowledge of it because it does affect them. The American public deserves honest services from public officials, and they have the right to expect it.”

 

 

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7 comments to Corrupt Government Agencies? Say It Isn’t So!

  • Glen Gibellina

    Money Is More Important Than a Parent
    By Don Hubin, Ph.D., Chair, Fathers and Families of Ohio Executive Committee

    Don Hubin
    Money is more important than a parent. We don’t express this view by our words, of course. But our actions scream it loudly.

    Fathers and Families of Ohio is working with legislators to provide a fast, low-cost, effective way for nonresidential parents to have their court-ordered parenting time enforced. It is a scandal that we have a multi-billion dollar bureaucracy to enforce financial child support orders and, yet, we leave parents whose time with their children is denied on their own, with demonstrably ineffective, but very costly, mechanisms for protecting their relationship with their children.

    Despite what we profess to believe, our legal rules and governmental institutions suggest that we believe that dollars are more important to children than parents. There’s no other way to explain the shameful way we have ignored children’s need for time with both parents when they are living apart.

    When parents violate court orders to support their children financially, we have a word for those parents. And we have more than words for them; we have a host of punishments to impose on them: wage garnishment, license suspension, passport denial, interception of tax refunds and workers’ compensation payments, and jail. There is little sympathy for a parent who has the capacity but not the willingness to support his or her children. But, when a parent violates court orders to allow the other parent his or her time with the children, we turn a blind eye. There is no popular derogatory term for such a parent. More importantly, there are no effective measures for dealing with such behavior.

    It is not because the behavior is rare. Decades of research have confirmed that this is a common problem. One study found that “40% of mothers reported that they had interfered with the non-custodial father’s visitation on at least one occasion, to punish the ex-spouse.” And it’s not because non-custodial parents find such interference acceptable. A survey commissioned by the Ohio Department of Jobs and Family Services and released in 2002 indicated that 87% of child support obligors believe that enforcement of visitation rights (parenting time) is “very important” or “extremely important.” Officials from the Cuyahoga County’s Department of Justice Affairs said 8,941 people walked into their office in 2009 to seek help with visitation rights.

    The Ohio Revised Code instructs courts, when determining custody, to take into account which “parent [is] more likely to honor and facilitate court-approved parenting time rights or visitation and companionship rights” and Ohio law indicates that it should count against a parent’s bid for custody that he or she has “continuously and willfully denied the other parent’s right to parenting time in accordance with an order of the court.”

  • Glen Gibellina

    Founding Fathers March on DC April 2012
    My testimony on the U.S. Supreme Court Steps
    WLYB….“We can still holler and shout but we have to light the lamps that shed the light on corruption, injustice, ineptitude and abuse of power. When we do, you will see the villains scurry into the woodwork the way roaches do when you turn on the light.” Frank Serpico
    Founding Fathers March on DC
    http://www.youtube.com/watch?v=fBq2r5y-mww&feature=colike
    A group of single dads met in Washington DC on April 20, 2012 to protest the Corrupt Family Courts in this Country this is my statement that day in the steps…
    “Corruption is authority plus monopoly minus transparency.

  • Glen Gibellina

    Dear Judges and Magistrates of the 12th Judicial Circuit Court
    One year ago today another good father was pushed over the edge by Family Court. You should take the time and read the whole story about this man and perhaps you would have a better understanding of what the real destruction father’s face in Family courtrooms not only in the 12th but across our country. The most common suicide victims are divorced and/or estranged fathers like Tom Ball and Derrick Miller. In fact, a divorced father is ten times more likely to commit suicide than a divorced mother, and three times more likely to commit suicide than a married father. It’s time for a change…for the better. Glen Gibellina
    SUMMARY OF THE THOMAS JAMES BALL CASE
    On Friday June 15, 2011, the world became aware of a man who after years of being brutalized by the family court system, decided to share his pain and outrage with the world, with the intent of shining a bright light on the ongoing feminist corruption and the systematic destruction of human beings by a corrupt court system.
    The man’s name was Thomas James Ball. He doused himself in gasoline then self immolated on the steps of a family courthouse in New Hampshire. Mr. Ball chose to use his own agonizing death to focus public attention on the corruption of the family courts. The mainstream media has no interest in human suffering, when it belongs to a man, and before just now, you have probably never heard of him.
    In understanding this story, we must first ask ourselves — How much personal agony, how many years of pain does a human have to endure before death by self immolation seems like a rational choice?
    And yes, I will stand on the word rational here. Mr. Ball wrote a detailed account of his experience in the family court system, as well as a summary of his research, and his consequent deep understanding of the scope and depth of corruption driving the institution of the family courts. His letter, (and in MP3 format), is linked in the menu of this site – and I strongly recommend you read it. Its long, but its not rambling – and anybody who calls it rambling is doing so to discredit and belittle this man, and to distract you from the very real pain produced in the lives of millions by a corrupt court system.
    Thomas James Ball, born 2/21/53 and his wife at the time, Karen Louise Ball (maiden name Primiano), born 3/2/65 had begun divorce proceedings about a decade ago. It was alleged that Ball had committed domestic violence against his 4 year old daughter at the time, Melissa. Karen had called Monadnock Family Services after the incident and was allegedly told that if she did not report the incident to police, that she would be arrested for child abuse. She called Jaffrey PD out of fear of what the government people would do to her family (steal her kids if they were both arrested) and because of their mandatory arrest policy in domestic violence cases, Thomas was arrested. He was found not guilty of simple assault in Cheshire Superior Court, despite slapping his daughter and causing bleeding.

    The Jaffrey PD apparently admitted that pressing forward as a domestic violence case was a mistake. His wife’s testimony shows he did not have a history of violence. Thomas figured he’d get to see his kids again after the not guilty. He figured wrong. The court continued to press for counseling at Monadnock Family Services (MFS) prior to allowing Thomas unsupervised visits with his kids. Of course, this is a huge racket for MFS, who likely is paid for every one of the cases they are sent by the court, either by the people involved or by the state of NH.

    Thomas claimed Monadnock Family Services misinformed Karen when she was told that she better call the police or she’d be arrested for child abuse. He outlines the history of the case in question in his lawsuit against MFS from 2006. Here’s the PDF of his claims. The court dismissed the case against MFS primarily on a statute of limitations technicality.

    Thomas, odyssey with Cheshire superior court’s “justice” system stretched for an entire decade of his life, and despite making child support payments and having unsupervised visitation with his young son, he was unable to have unsupervised visitation with his two daughters, not because he was considered a danger, but because he refused to attend counseling as ordered by the court. Why did he refuse? Because the location of the counseling was to be Monadnock Family Services, the very same agency that he believed was responsible for escalating the situation and intimidating Karen Ball into calling the police in the first place. He wanted the decision on unsupervised visits to be made by the court, but the court kept passing the buck to MFS, therefore he did not participate, as he felt the case worker had a vendetta against him, as she allegedly refused to meet with him until he changed his attitude..

    In 2009 he lost his job and was unable to continue making child support payments. As a result, Karen filed for a hearing on contempt of court, which the court scheduled for 6/24, next Friday. You can download Karen’s motion for a contempt hearing here in PDF form. In it, she alleges that Thomas owes thousands in back child support and attorney’s fees and demands the court sentence him to jail until he can pay the amounts demanded.
    Of course, one might wonder how a jobless man could pay anything to child support behind bars, and perhaps Thomas was wondering how that might be possible as well. Facing an indefinite jail sentence, during which the amount “owed” would continue to grow, he chose to end his life in the hopes that someone would pay attention to the plight of families destroyed by this horrible system that is supposedly there to protect us. (Of course the truth is, they protect and serve themselves, not us.) He had tried the legal route, filing lawsuits to no avail. He tried to protest, joining the Fatherhood Coalition and picketing courthouses and the state house. Nothing worked.
    Thomas James Ball was a man pushed to the brink by an inhumane system enforced by people who act like they have no empathy and are “just doing their jobs”. Thomas had his own issues with which to deal, but by all evidence, and even according to the state, he was NOT a domestic abuser, despite losing control with his daughter, which was clearly the wrong thing to do. Had the people calling themselves the state never gotten involved, maybe his family would still be together.
    He wrote a full and detailed description of his life and the events that would lead him to these final days called “My Story” that can also be found here on this site. We encourage anyone who dares reflect on his actions or his self immolation to read it, first!.
    On June 15 around 5:30 pm, a 58-year-old New Hampshire father of three, self-immolated in front of the Cheshire County Court House. Ball was pronounced dead at the scene.
    Before he died, he sent a letter to The Keene Sentinel to explain his actions. The full text of the letter, his Last Statement, can be found here.

    Men are:
    76% of homicide victims – DOJ
    80% of Suicide victims – CDC
    Suicide took the lives of 30,622 people in 2001 (CDC 2004).
    Suicide is the eighth leading cause of death for all U.S. men.
    24,672 suicide deaths reported among men in 2001. Source
    “Suicide ranks 11th among causes of death in the US, with 30,622 completed suicides in 2001. It is the 3rd leading cause of death among people 15 to 24 yr. Men ≥ 75 yr have the highest rate of death by suicide. Among all age groups, male deaths by suicide outnumber female deaths by 4:1.” Source:
    “The other most common suicide victims are divorced and/or estranged fathers like Tom Ball and Derrick Miller. In fact, a divorced father is ten times more likely to commit suicide than a divorced mother, and three times more likely to commit suicide than a married father. Source

  • Glen Gibellina

    Case 2002DR3254 12 Circuit Court of Manatee County, Florida.
    My reward for 10 years of effort NO CONTACT.
    This is a death sentence for Parents in Family Court.
    PLEASE, PLEASE post a comment for the record on the newspaper link.
    I will never give up on my daughter and your comments will help her understand that Daddy never gave up on her.

    1. Time to reform the broken 12th Circuit Family Court
    In a recent court decision by the Honorable Jannett Dunnigan of the 12th Circuit Family Court, a college-educated father was denied permission to home school his 10-year-old daughter after the daughter missed 44 days of school under the care and custody of the former wife. Judge Dunnigan also stated, “I am finding, sir, that you have failed to show that you either have the capability of home schooling, or that home schooling would be in the child’s best interest.”
    Put the child back into the school system, though the school district can neither account for the 44 missed days nor did they trigger any investigation for excess absences or truancy reports as required by law and the Florida statutes. The failure of the school system has caused my daughter not to meet the attendance requirement.
    I believe every parent has the God-given right to raise their children with the least amount of government interference, as protected by our Constitution.
    Family court is broken beyond repair. It’s time to dismantle the current draconian system that encourages high-conflict attorneys for both sides, and if one side cannot afford an attorney, well you see the result it has on pro se litigants.
    Where’s the “Family” in the 12th Circuit Family Courts, because I don’t see it.
    Follow the money.
    Glen Gibellina
    Sarasota
    Read more here: http://www.bradenton.com/2012/04/06/3983665/time-to-reform-the-broken-12th.html#storylink=cpy.
    Time to reform the broken 12th Circuit Family Court | Letters To The Editor | Bradenton Herald.
    http://www.bradenton.com
    “Corruption is authority plus monopoly minus transparency.”

  • Glen Gibellina

    IN THE CIRCUIT COURT OF THE TWELTH JUDICIAL CIRCUIT
    IN AND FOR THE COUNTY OF MANATEE
    FAMILY DIVISION 3
    __________________

    GLEN GIBELLINA,

    Petitioner/Former Husband, CASE NO. 2002-DR-003254
    Filed June 4, 2012
    And Hon. Marc B. Gilner

    CONNIE GIBELLINA,

    Respondent/Former Wife,
    ___________________________________/

    STATEMENT OF THE CASE
    Appellant has been prevented by a December 22, 2009 order of the Manatee County Circuit Court from seeing or contacting his 10-year-old daughter in over two years.
    Appellant and appellee divorced in 2003 and agreed to joint custody of their minor child with primary residence with the appellee mother with liberal visitation to the appellant father.
    The parents’ relationship became high conflict in 2006 after the minor child was left in the physical care of appellant for six months. Appellee summarily re-took physical custody of the minor child in early 2007, and appellant thereafter has filed, pro se, several petitions for relief, and to return the child to his actual physical custody.
    Appellant now prosecutes an outstanding petition for modification of custody and other relief to be reunited with his daughter that was filed March 3, 2011. Trial was set for August 22, 2011, but was adjourned on the day of trial by the trial judge.
    Appellant then moved the court orally to restore his time-sharing rights, but was told he had to file a written motion and notice it for hearing.
    Appellant filed that written motion on October 7, 2011, and requested that the trial judge disqualify herself from hearing the motion because he justifiably feared that he would not receive a fair hearing on his motions to restore his time-sharing rights, and for relief from void orders pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5) because of the prejudice or bias of the trial judge, and moved to disqualify her pursuant to the Rules of Judicial Administration 2.330(d)(1). Appellant filed a separate sworn affidavit averring the truth of the assertions and certifying the motion was made in good faith, and that there were no previous motions to disqualify filed or granted under Rules of Judicial Administration 2.330.
    The trial judge immediately issued an order on October 10, 2011 declaring all of Appellant’s motions “legally insufficient”. Appellant filed a request for reconsideration and clarification, as the trial judge’s blanket response left Appellant without direction as to how or if his main substantive motions, the Motion to Restore His Time-Sharing Rights, and his Motion For Relief Pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5)—could be heard.
    The Appellant directed the motion for reconsideration to the chief judge of the circuit for decision, as the Motion To Disqualify appears to be legally sufficient on its face, and Appellant feared further repercussions for filing the motion. 12th Circuit Chief Judge Andrew D. Owens, Jr. directed Appellant to file the appropriate appeal in an order not entered in the court’s docket, but provided to the trial judge. That trial judge entered another order that same day, October 31, 2011, finding the motion for reconsideration and clarification to again be “legally insufficient”.
    This is an appeal from a non-final order rendered October 10, 2011, entitled “Order Denying Petitioner’s Motions”, and the non-final order denying reconsideration and clarification thereof rendered October 31, 2011, on Appellant’s October 7, 2011 written motions to (1) restore his time-sharing rights with his minor child Stormie, dob 7/19/01 that have been suspended and denied since November 13, 2009 by a succession of magistrate recommendations and orders of the Manatee County Circuit Court, (2) to declare orders dated April 20, 2009 Order, October 26, 2009 Order, and December 22, 2009 Order previously entered in the Manatee County Circuit Court void, discharged, satisfied, and/or inequitable to apply prospectively pursuant to Fla.R.Civ.P. 1.540, and (3) to disqualify Hon. Janette Dunnigan for bias and prejudice against Appellant’s cause.

    STATEMENT OF FACTS
    This matter ultimately emanates from a Final Judgment of Dissolution of Marriage entered herein on January 23, 2003. At that time, the parties reached a Marital Settlement Agreement incorporated into the Final Judgment that, inter alia, provided for Shared Parenting of the minor child of the parties, Stormie Brooke Samantha Gibellina, born 7/19/2001, age 1 ½ years at the time of the entry of the Judgment of Dissolution.
    The agreed-upon Shared Parenting arrangement in the January 23, 2003 Judgment provided for the Sharing of Parental Responsibility in which both parents retained full parental rights and responsibilities, and a Flexible Parental Schedule based upon Primary Physical Residence of the then infant-toddler being with the mother/Appellee with father/Appellant enjoying liberal visitation considering the schedules of the parties and the child. The parties specifically agreed that visitation would be every other Friday at 6:00 p.m. until Sunday at 6:00 p.m., and every Wednesday from 4:00 pm to 8:00 p.m. Additional visitation would be also be liberal, as the parties might otherwise agree. The Appellant agreed to pick up the minor child to begin any visitation, and the Appellee agreed that she would retrieve the child at the end of any visitation. If a parent was to be away from the child for more than 4 hours, that parent was to give the other parent the opportunity to watch the child before engaging the services of a babysitter. The parties also agreed to equal Entitlement to School Information, agreed to keep the other Informed as to the Whereabouts of the child upon request of the other parent, and to reasonable Telephonic Contact. (Manatee Circuit Court Docket entry, January 23, 2003 Final Judgment of Dissolution of Marriage, Exhibit A Marital Settlement Agreement, pp 1-3.) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 1)
    On May 30, 2006 (Manatee Circuit Court Docket entry Docket entry, Exhibit A, Received into Evidence October 9, 2007, Letter from Connie Gibellina), Appellee agreed to let the minor child stay with Appellant for 1 week beginning May 30, 2006. Appellee never came back. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 2)
    Appellee had become addicted to crack cocaine. She had no fixed residence, but rather moved from motel to motel in Manatee County (Docket entry, see Exhibit B, Received into Evidence October 9, 2007, motel receipt for Appellee and Megan Freeman paid by Appellant) in areas which were well-known for prostitution and drugs—Best Westerns of State Roads 64 and 75, a series of Days Inns, Suburban Inn, Deluxe Inn and Budget Motel. She prostituted herself in order to support her drug habit, and, in the process, had her other biological child, pre-teen Megan Freeman, removed from her custody by the Department of Child and Family Services. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 2)
    Appellant was faced with the responsibility of caring for the 5-year-old minor child and seeing that the legal system’s court records reflected that reality, as Respondent essentially abandoned the minor child. Appellee made little or no effort to see or visit her minor child. Appellant enrolled the minor child in preschool for the summer (Docket entry, see Exhibit C, Received into Evidence October 9, 2007, Letter from Preschool Director), and placed her in kindergarten when the school year began in September of 2006. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 2)
    In order to get the custodial arrangement properly memorialized, and to facilitate school enrollment, Appellant filed an Emergency Motion for Temporary Custody on August 30, 2006, and filed on November 21, 2006 filed a Supplemental Petition For Modification of Primary Residence of the Minor Child, alleging, inter alia, that Appellee had abandoned the minor child, that the child had been living with Appellant since June of 2006, and that Appellee was a drug addict involved in and living in places of prostitution, with no fixed residence, and had her other biological child removed from her custody on account thereof by the Department of Child and Family Services. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 2)
    On January 23, 2007, Appellee, having moved into an someone’s mobile home as a roommate due to the remission to her of a tax refund based upon credits issued to her because of custody of two minor children that had, in actuality, not been in her custody at all, appeared without notice at the minor child’s child kindergarten class, declared that she had custody of the minor child by showing the principal the Final Judgment of Dissolution, and yanked the minor child out of the class at Kinnan Elementary that the minor child had been in since August of 2006, against the minor child’s will. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 3)
    Appellant had to discharge counsel as a Magistrate’s hearing scheduled for April 10, 2007 approached, and Appellant could not appear for trial, and Appellant had his new counsel file a Voluntary Notice of Dismissal on April 9, 2007; however, the Magistrate admonished Appellant’s counsel for lack of concern for proper trial practice, struck Appellant’s Notice of Dismissal, and then proceeded to dismiss the Supplemental Petition herself. Despite the serious allegations contained within the Supplemental Petition itself, no findings were made with respect to the safety, health, education, or welfare of the 5-year-old minor child. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 5)
    Having limited financial resources, Appellant decided to plod on pro se, and on December 26, 2007, he filed another Supplemental Petition For Modification of the 2003 Final Judgment of Dissolution, this time alleging in addition to what had been alleged in the prior filings that Respondent was engaged in a program of alienating the six-year-old minor child from Petitioner/father to the point where the child was developing Parent Alienation Syndrome. Appellant alleged in the petition, and in a series of contempt motions filed against the Appellee, that Appellee was intentionally interfering with contact with the child, and with visitation. Appellant proposed an arrangement wherein he would have the minor child during the school week, and Appellee would have the child during weekends, and extra time when school was not is session. Appellant also filed a October 6, 2008 Supplemental Petition For Modification For Visitation of the Minor Child seeking to be allowed to take the minor child to and from school, and that Appellee cooperate and add Appellant to the school “pick up” list. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 6)
    Appellant filed a Motion for Contempt arising out repeated visitation denials, and out of a February 18, 2008 school holiday for the minor child wherein the Appellee went to work, and rather have Appellant spend time with the minor child, Appellee left the minor child in the care of Appellee’s other 13-year-old minor child. Child Protective Services was called, and an investigation for possible child neglect was begun. Appellee’s reaction, through counsel, was to file a Supplemental Petition for Modification on February 20, 2008 alleging a substantial change in circumstances since 2003, and requesting sole custody, with supervised visitation for Appellant, all on account of alcohol consumption. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 7)
    Trial was held on July 31, 2008 before Hon. Peter Dubensky. The judge held Appellee in contempt for willful non-compliance with visitation provisions, and ordered 54 days of make-up visitation for Appellant. Judge Dubensky also found the assertion of willful alienation to be insufficient grounds for a change of custody. The Court also denied Appellee’s motion for sole custody, citing insufficient grounds to establish a substantial change in circumstances. Judge Dubensky specifically continued shared parental responsibility. The Court also cited the close and continuing relationship that the minor child had with her sibling Megan Freeman, and that relationship should not be disturbed. He also found the parties unable to communicate in regards to issues concerning the minor child, and indicated the Court would enter and order appointing a parenting coordinator (‘PC’)for 90 days to aid and assist establishing and adhering to contact, visitation, communication and any other matters needed to prevent further issues. (Docket Entry, Amended Order of August 25, 2008) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 8)
    On August 22, 2008, a custody monitor was appointed for a period a 90 days, with a direction to submit a report to the court after a social investigation no later than 80 days hence. Appellant applied for, and was granted, indigent status by the court on September 15, 2008. After the monitor withdrew in a dispute over payment of fees, Judge Dubensky again signed an Order Appointing a PC, but this time the appointment was open-ended as to duration. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 9)
    Appellee on January 15, 2009, made a false claim of domestic violence against Appellant resulting from a visitation exchange. Although a misdemeanor charge was issued, and an injunction was applied for, both cases were dismissed. The PC arranged for subsequent exchanges to take place at the Sarasota Police Department. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 10)
    On or about April 3, 2009, Appellant was found to have consumed alcohol prior to attempting to pick up the minor child at the Sarasota Police Department. The Department of Child and Families services was called, and the department contacted the PC Jane Green. The PC requested an urgent status conference on Wednesday, April 8, 2009 (Exhibit 1 to 10/7/2011 motion), and the Court issued on April 8, 2009 a Notice of Hearing (Exhibit 2 to 10/7/2011 motion) for Monday, April 13, 2009 on no issue other than “Status Conference”, and Appellant thus attended the hearing without counsel. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 11)
    Appellant was given no warning that his time-sharing rights were at stake, he appeared unrepresented by counsel, and was unprepared to rebut unfavorable evidence proffered to the Court by the PC, who appeared at the hearing with a three-page stipulation (Exhibit 3 to 10/7/2011 motion) that temporarily limited Appellant’s time-sharing rights on account of the incident on April 3, 2009 to supervised visitation, no overnights, with school lunches. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 12)
    The unrepresented Appellant felt pressured by the PC to enter into the prepared stipulation or face more severe summary suspension of his time-sharing rights by the Court, and a remorseful Appellant entered into the stipulation designed and prepared by the PC on April 13, 2009 to attend AA meetings and achieve continuous sobriety, and to have his time-sharing privileges limited to supervised visits and school lunches. The stipulation was not voluntary and freely entered into. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 13)
    The stipulation, approved by Court order on April 20, 2009 (Exhibit 4 to 10/7/2011 motion), inter alia provided the PC’s office-suite mate, Sarah King, LCSW, would render therapy and treatment on the minor child not less than twice a month because of the high level of conflict between the parents and because of Appellant’s drinking, that an appointment for the minor child had already been made, that Appellant would “remain in supervised visitation for up to six months time or more; dependent upon the father’s demonstrated and reported ability to be free of alcohol during visitation with the minor child,” and that “When supervised visitation for Mr. Gibellina is deemed by the Honorable Peter Dubensky (the Court) to be no longer appropriate; visitation as outlined in the current settlement agreement (the 2003 Marital Settlement Agreement) will resume (emphasis added).” (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 14)
    A PC under Florida law is designed to be an impartial third person whose role is to assist the parents in successfully creating or implementing a parenting plan. Fla. Stat. §61.125(4) When Appellant made a mistake in judgment and appeared for a visitation pickup on April 3, 2009 after he had been drinking, the PC requested a Status Conference where she proposed a stipulated agreement severely limiting Appellant’s rights to see his daughter. She had clearly become an advocate for Appellee. The PC engineered a program of day-time only, supervised visitation for six months, during which the Appellant initiated an abstinence-from-alcohol lifestyle, which he has maintained for 2 ½ years. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 15)
    Supervised visitation took place pursuant to the order, and glowing reports of the visitation were provided to the Court by the Visitation Supervisor (Exhibit 5 to 10/7/2011 motion, June 16, 2009 and July 7, 2009 letters with notes from Pamela Gersbach, MSW) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 16)
    On July 24, 2009, Appellant filed a Motion to Dismiss Supervised Visitation and Implement Submitted Parenting Plan because Appellee had been arrested on July 4, 2009 in the wee hours of the morning for driving under the influence of alcohol or drugs, she had been out driving intoxicated at a time in the early morning hours that is normally associated with a search for drugs, and was now without a driver’s license. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 17)
    A hearing on the motion was held on October 2, 2009, and General Magistrate Maulucci, despite the ordered stipulation that visitation was to return to normal after 6 months, dependent upon Appellant’s abstinence from alcohol, when the Appellant moved to have visitation so restored, the PC opposed it in testimony. The Magistrate’s October 7, 2009 Recommended Findings of Facts and Conclusions of Law (Exhibit 6 to 10/7/2011 motion), adopted by Court order dated October 26, 2009 (Exhibit 7, attached hereto) are hardly more than a wholesale adoption of the PC’s illegal stipulation and gratuitous narration of April 13, 2009, but with one important exception. Faced with the glowing Supervised Visitation Reports, and with the evidence the Appellant was serious about maintaining a life of abstinence and recovery from the use of alcohol, Magistrate Maulucci removed the supervised visitation restriction, yet she failed, in violation of the April 20, 2009 Circuit Court order, to re-institute visitation as outlined in the marital settlement agreement upon termination of supervised visitation. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 18)
    Appellant wrote the PC on October 5, 2009 that he was terminating her services, and he filed a motion to have the PC removed on October 28, 2009, the response to which was a Request for Status Conference filed by PC Jane Green that same day. The PC requested a status conference (Exhibit 9 to 10/7/2011 motion), for which a Notice of Hearing was issued by the Court (Exhibit 10 to 10/7/2011 motion) that noticed the only issue to be decided as “Parent Coordinator’s Request For Status Conference”. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 21)
    The PC prepared a November 12, 2009 Status Conference Report to the Court (Exhibit 11 to 10/7/2011 motion) that is fraught with illegal confidential disclosures, illegal recommendations concerning the resolution of substantive disputes between the parties, and downright falsehoods. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 22)
    Appellant was given no warning that his time-sharing rights were at stake, he appeared unrepresented by counsel, and was unprepared to rebut unfavorable evidence proffered to the Court by the PC, who appeared at the hearing with the November 12, 2009 Status Conference Report to the Court (Exhibit 11 to 10/7/2011 motion, Exhibit 11a ex parte letter to court). (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 23)
    The PC’s report was given to the parties for the first time in court on November 13, 2009, and General Magistrate Maulucci adopted it wholesale, without sworn testimony, without an application made for the PC to give testimony, and without the opportunity for cross-examination. The PC’s remarks in her November 12, 2009 report, precipitated only by a legitimate request to have her removed from the case, resulted in the permanent, open-ended suspension of Appellant’s visitation privileges with his daughter. (December 2, 2009 Findings of Facts and Recommendations of Hearing Officer on Parenting Coordinator’s Request for Status Conference, Exhibit 12 to October 7, 2011 motion). (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 24)
    Appellant filed objections to the December 2, 2009 Findings of Fact and Recommendations of Hearing Officer on Parenting Coordinator’s Request for Status Conference on December 11, 2009. They were ignored. A circuit court order adopting what had been scheduled as a status conference but without notice transformed into a court proceeding was entered December 22, 2009. (Exhibit 13 to 10/7/2011 motion) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 25)
    The December 22, 2009 order suspends Appellant’s parental rights until he “commence individual counseling with a licensed mental health counselor” to “determine and gain insight” why he files motions/pleadings to see his daughter, and although the Wife and the court system have controlled Appellant’s life and relationship with his daughter through exclusion, he is to, by the terms of the Court order, determine “why he is trying to control the Wife and the minor child through the court system.” (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 27)
    The December 22, 2009 order also suspends Appellant’s parental rights until he “shall participate in the child’s counseling sessions with her therapist, Sara King.” Appellant met with Ms. King, the minor child’s therapist, three times. She told Appellant that it may take “years” for him to establish visitation with his daughter that was not severely limited by the Court and the former Wife, and that she the therapist would be the judge of when normal visitation could take place. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 29)
    Appellant participated in sessions with Sara King, and he commenced counseling sessions with David Preston of Good Samaritan counseling agency, licensed mental health counselor, pursuant to the December 22, 2009 order of the Court. Sara King now refuses as of September of 2011 to allow participation by Appellant, and refuses to allow input from David Preston. The Court refuses another evaluation of the situation by David Preston. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 30, paragraph 49)
    Appellee clearly continues to drink and drug in the presence of the minor child, as evidenced by a August 12, 2010, 1:45 a.m. videographically recorded conversation (a copy of a written transcript of which is Exhibit 8 of 10/7/2011 motion, and the video for which can be viewed at http://www.youtube.com/watch?v=4JFcN1Xe2I4&feature=colike) between the minor child and her half-sister, Meghan, who Appellee had sent to live with her natural father in Alabama. Appellee, having left the minor child at home alone without supervision for a night of drinking with her boyfriend, and having returned clearly severely intoxicated, threatens to send the minor child to live with her father the next day, profanely scolds the minor child for criticizing her drinking, and tells the minor child that the Appellee chooses her life with her boyfriend rather than her daughter. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 31)
    The Appellee’s own witness, Ashley Daymon, the minor child’s fourth grade teacher for the 2010-2011 school year at Blackburn Elementary, at the August 23, 2011 hearing in front of Judge Dunnigan termed the video referred to above as “disturbing” (Penny A. Zunker Transcript of August 23, 2011 hearing, pp 57-58). The trial Court’s virtual complete disregard of Appellant’s continuous sobriety since April 3, 2009, and the hypocrisy of Appellant having time-sharing rights supervised and suspended owing to alcohol use at a time when he continues to demonstrate one-day-at-a-time abstinence in the face of the active alcoholism of the custodial parent, is well-documented. Appellee’s active alcoholism is corroborated by her July of 2009 drunk driving arrest and conviction, and by the August of 2010 early morning treatment of the minor child while in a drunken stupor that the Court and the social investigators largely ignore, and by her marriage to a patron of the Moose Lodge she met while doing her community service for drunk driving at that bar. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 32)
    Appellant had filed an Amended Supplemental Petition for change of custody and other relief in March of 2011 and was, on June 2, 2011, given a trial date by Hon. Janette Dunnigan of August 22 and August 23, 2011. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 33)
    Counsel for Appellee had filed a Motion for the Appointment of Attorney Ad Litem for Minor Child on January 4, 2011, and she cited the progression, outlined in paragraphs 11 through 27 of the October 7, 2011 Motion, of the suspension of Appellant’s visitation rights in 2009 by PC Green and General Magistrate Maulucci in support of the need for an Attorney Ad Litem. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 34)
    The need for the appointment of an Attorney Ad Litem did not even merit counsel for Appellee’s time to even set it for a motion hearing until six months after counsel filed the motion, until the Court set the Amended Supplemental Petition to Modify for trial on June 2, 2011. Only then did this nonsensical need for an Attorney Ad Litem become important enough to set the motion for hearing. This additional layer of government intrusion into the father/daughter relationship clearly was requested only for the purposes of delaying the trial. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 35)
    When the Court convened a hearing on the motion on July 12, 2011, counsel for Appellee represented the need for an Attorney ad Litem in the Amended Supplemental Petition to Modify, set for trial in six weeks, as follows:
    THE COURT: All right. You may begin.
    MS. TOBAYGO: Thank you, Your Honor.
    I filed a motion for the appointment of an attorney ad litem back in January. As the Court may recall, this case has been open in a post-dissolution setting for quite some time. There is one child who’s subject to the proceeding. She’s almost ten. She’ll be ten next week.
    The parties have gone through a number of different professionals, one of which being a parenting coordinator and different things, and the ongoing issue seems to be issues with visitation.
    I filed this after much deliberation and discussion with my client because it seems that much of the litigation seems to be pointed at issues between the parents. I think actually the issues point to the relationship and the situation between the child and the father, and I think the Court record will reflect that.
    The benefit of the attorney ad litem is that it’s a resource that, while not used very often in our system, it’s based on the volunteer list of professionals in our community who are familiar with the family law system and whose only role would be to represent the interest of the child.
    I think that’s the one component that’s missing and that is really — would really be helpful to the Court, helpful to the child, especially in determining what is in the best interest because the setting is continually putting the parties against each other and I don’t know that that’s really ever going to get us to where the Court fully understands what’s in the child’s best interest.
    We bring the request in good faith. I do have a list of attorneys who are willing to be attorney ad litems. I haven’t spoken to any of them nor would I, you know, pending the hearing. But I have that for the Court if the Court doesn’t have it already. I’d ask that the Court appoint an attorney ad litem.
    We do have a number of hearings set on the August 22nd and 23rd, the afternoons of those dates. I think that there’s probably sufficient time for someone to be appointed to be involved to meet with the child and to do whatever they feel is necessary to speak on the child’s behalf at those hearings.
    (Tiffani K Manrodt Transcript of July 12, 2011 hearing, pp 2-3) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 37)
    Appellant has not, because he has been precluded by the courts, seen his daughter since November of 2009; whatever care, custody, and control of the minor child has been exercised is owing to the Appellee, and if the minor child needs a Attorney Ad Litem, it would only be for protection from Appellee, and the her program of severing all ties between father and daughter. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 36)
    On August 18, 2011, counsel for Appellee filed a Motion To Continue the trial for 30 days so that a court-appointed Attorney Ad Litem would have an opportunity to properly address the best interests of the child. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 41)
    On August 22, 2011, the day Judge Dunnigan granted Appellee’s request for a 30-day continuance filed by attorney for Appellee one business day before the trial, counsel for Appellee represented to the Court as follows:
    MS. TOBAYGO: I understand Your Honor was out of town. I did file a Motion to Continue based on generally the following: We are set for a number of things this afternoon and tomorrow afternoon. I’m not seeking to continue everything. I think we can hear a number of the things that are set, but specifically I think as it relates to Mr. Gibellina’s Motion For Home School of the Minor Child in his Supplemental Petition, I think Miss Leibovitz’ involvement with the child in her independent input and analysis as to those things are very important, and given not only the time frame that we’ve been dealing with over the last two weeks given her appointment, which was reflected in the docket on line but certainly not an order entered, she has not had sufficient time to really delve into the matter sufficiently.
    So I filed the Motion to Continue on that premise. I did let Mr. Gibellina know, I conferenced with him, he certainly disagrees and I respect that. It’s not intentional, it’s not in an effort to delay these proceedings any further. I would be simply looking for a 30-day continuance (emphasis added) of those two pleadings of his so that we could have her input. She’s also unavailable today, she’s in mediation, she is available by phone; she’s available tomorrow.
    But that being said, she still hasn’t had an opportunity to really fully delve into the issues at hand, fully understand the pleadings. I don’t know that she’s met with Mr. Gibellina, or any collaterals. She just met with the child on Friday.

    (Penny A. Zunker Transcript of August 22, 2011 hearing, pp 6-7) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 42)
    Judge Dunnigan easily could have heard Appellant’s witness’ testimony on the issue of custody, and adjourned the hearing to hear from the Attorney ad Litem at a later date without compromising the “independent legal interests” of the minor child. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 44)
    When Judge Dunnigan agreed to adjourn the trial, Appellant orally moved to have his parental and visitation rights restored (Penny A. Zunker Transcript of August 22, 2011 hearing, pp 22, 83); however, the Court either deflected the motion (p 22), or ruled that Petitioner had not properly prepared and noticed a written motion (p 83). (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 48)
    On August 23, 2011, the Court held Petitioner in contempt of court for visiting his daughter’s school on September 13, 2010, and for sending text messages to the Respondent to be relayed to his daughter in the nature of “I love you”. In so holding, and denying an oral motion to have the minor child participate with Petitioner’s therapist David Preston, Judge Dunnigan declared, “The Court will not hear any motions, any additional motions until such time there has been compliance with the 2009 order. When you do that, you may ask for additional relief.” (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 49)
    Appellant, as he did back in 2009-2010, again in August and September of 2011 attempted to comply with the illegal and hopelessly outdated order by contacting Sara King for an appointment. Ms. King as of September of 2011 refuses to allow Appellant to participate in therapy sessions pursuant to the 2009 order. She has filed a “Motion to be Removed from the Case”, though she desires to continue as the therapist for the minor child, a position she has held for two years and one-half years. She is either not making any professional progress whatsoever, or is milking the system for fees. (see Petitioner’s email attempting to set appointment, Exhibit 20, to 10/7/2011 motion) (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 50)
    Judge Dunnigan, in a September 26, 2011 order called “Order Striking Former Husband’s Notice For Trial” (Exhibit 19 to 10/7/2011 motion) turned Appellee’s request for a 30-day adjournment into an indefinite adjournment. Appellant, having not received an order or a proposed order from the August hearings, had filed a request that the case be set for trial and a case management conference. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 51)
    Judge Dunnigan in her September 26, 2011 response made findings not at issue in the August of 2011 hearings, without taking proofs on the issue of whether Petitioner had complied with the December of 22, 2009 order, and declared most disconcertingly, that “At the hearing on August 23, 2011, this Court ordered the Former Husband to comply with the General Magistrate’s Order and instructed him that until he complies with same, no further action shall be taken upon his Amended Supplemental Petition to Modify”, and the Court ordered on September 26, 2011 (received by Appellant on September 28, 2011) that Appellant had 12 months to comply with the December of 2009 Order, or the Court would dismiss Petitioner’s Amended Supplemental Petition. That is a false statement of what happened at the August 23, 2011 hearing. Judge Dunnigan declared that no further motions could be filed, in and of itself a questionable legal declaration, not that the custody trial would not be reset for hearing. Judge Dunnigan has denied Petitioner a fair trial, indeed any trial whatsoever on his Petition directly owing to her bias and prejudice against Appellant. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 52)
    Appellant justifiably feared that he would not receive a fair hearing on his motions to restore his time-sharing rights, and for relief from void orders pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5) because of the prejudice or bias of Judge Dunnigan specifically described hereinabove, and moved to disqualify Judge Dunnigan pursuant to the Rules of Judicial Administration 2.330(d)(1). A separate sworn affidavit averring the truth of his assertions and certifying the motion was made in good faith and was submitted herewith, and there were no previous motions to disqualify filed or granted under Rules of Judicial Administration 2.330. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 57)
    Appellant has been continuously sober since April of 2009, and the Court has denied him the right to see his daughter since November of 2009 without a finding of parental unfitness. (October 7, 2011 Motion to Restore Timesharing Rights, For Relief from Orders, and to Disqualify, paragraph 53)
    Appellant appeals the failure to disqualify; the denial of relief pursuant to Fla. R.Civ.P. 1.540 to declare the April 20, 2009 Order, the October 26, 2009 Order, and the December 22, 2009 Order void, discharged, satisfied, and/or inequitable to apply prospectively; and the failure to restore his time-sharing rights. When Appellant asks to have the Court consider the opinion of his licensed mental health counselor about his fitness, whom the Court ordered him to see, he is told at the hearing that he cannot file any further motions until he complies with a December of 2009 order that he see a licensed mental health counselor.

    SUMMARY OF ARGUMENT
    I. Appellant’s October 7, 2011 motion to disqualify was legally sufficient on its face. Appellant has not seen his daughter in two years. He is fighting an order which suspends his parenting privileges because he sought full restoration of those privileges after he appeared for a visitation with alcohol on his breath. He decides to get sober, and stay sober, and does so for 2 and ½ years and counting.
    Appellant’s October 7, 2011 motion to disqualify was legally sufficient on its face. Appellant has been held in contempt by Judge Dunnigan for visiting his daughter’s school on September 13, 2010, and for sending text messages to the Appellee to be relayed to his daughter in the nature of “I love you”. He has been instructed by Judge Dunnigan not to file any further motions, ostensibly in violation of his due process right to see his daughter and Judge Dunnigan’s duty to be a jurist.
    Appellant was given a trial date on a petition for relief, and then saw that trial date washed away by the trial judge on the morning of trial with his witnesses assembled because of some claimed critical need to have the independent legal interests of his child protected by an attorney ad litem in light of his request to have custody of and see his child. Even further, the Court writes in its September 26, 2011 order that not only can Appellant file no further motions, because the Court finds he has not complied with a December of 2009 order which was not at issue at the hearing and upon which no proofs were taken, he will not have a trial.
    A party seeking to disqualify a judge need only show a well-grounded fear that he [or she] will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling.
    II. The Orders of April 20, 2009, October 26, 2009 , and December 22, 2009 are violative of Due Process of Law, and are on their face either void, discharged, satisfied, and/or inequitable to apply prospectively.
    The April 20, 2009 and the December 22, 2009 orders constituted the entry of orders modifying time-sharing when the notice of hearing did not include that issue in violation of Maras v Still, 927 So 2d 192 (Fla 4th DCA 2006); Foerster v Foerster, 885 So 2d 927 (Fla 2d DCA 2004); Gelato v Basch, 658 So 2d 664 (Fla 4th DCA 1995); Owen v Owen, 633 So 2d 1156 (Fla 5th DCA 1994), and in violation of Appellant’s parental rights protected by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 9 of the Constitution of the State of Florida.
    Even if the April 20, 2009 order could withstand due process scrutiny, the October 26, 2009 Order of the Magistrate’s October 7, 2009 Recommended Findings of Facts and Conclusions of Law, as described hereinabove, removed supervised visitation restrictions, and the October 26, 2009 Order is based upon and attempts to soften the Order of April 20, 2009, which cannot be softened in steps because the Order of April 20, 2009 specifically provides that “when the supervised visitation provision is removed, visitation as outlined in the current marital settlement agreement shall be re-instituted upon termination of supervised visitation”; and the October 26, 2009 Order is also therefore void, discharged, satisfied, and/or it is inequitable to continue to it apply prospectively pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5).
    III. Appellant’s time-sharing rights should be restored, and their continued suspension is a violation of Appellant’s Due Process right to have a relationship with his daughter, and the same is patent from the face of Appellant’s October 7, 2011 motion.
    The United States Supreme Court has held that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children. Ouilloin v Walcott, 434 US 246, 255 (1978); Stanley v Illinois, 405 US 645, 649 (1972).
    The State of Florida has similarly recognized that legal maxim. In Johnston v Boram, 386 So 2d 1230 (Fla 5th DCA 1980), the court stated “[t]he noncustodial parent should be granted reasonable visitation with a child unless there is proof of extreme circumstances, or the trial court finds that the visitation will adversely affect the welfare of the child.” Id at 1230; see also Kent v Burdick, 573 So 2d 61, 63 (Fla 1st DCA 1990) (noting that absent a finding from the trial court that a parent is unfit, the parent has a due process right to maintain a parental relationship with the child).
    Appellant has been found to be unfit by no court of law. He made a serious error in judgment by appearing for a visitation with alcohol on his breath; however, he has more than made amends to a family court system that continues to stand between him and his daughter, to whom he has also made amends by devoting himself to a life of continuous sobriety for over two and ½ years now since that incident. He went through a period of supervised visitation with great success over two years ago.
    The real reason is this—“Please, understand, sir, I don’t wish to have the final result be that you not ever be able to contact your daughter again, but it is important for the Court to make sure that you understand that you must abide by the Court’s Order, whether you agree with them or not. You must respect the order of the Court, follow the orders.” This case is not about reunification, it is about punishment, both from the Appellee and from the trial court.
    Following court orders is certainly important or we have chaos; however, insistence on the following of court orders issued in violation of Due Process of Law, and without any objective standards as to compliance with the terms of the order, is simply not right, and it is a denial of Appellant’s Due Process right to have a relationship with his daughter.
    ARGUMENT
    I. Appellant’s October 7, 2011 motion to disqualify was
    legally sufficient on its face.
    Standard of review
    Whether Appellant’s October 7, 2011 motion to disqualify was legally sufficient on its face is a question of law for which the standard of review is de novo. Southern Baptist Hosp. of Florida, Inc. v Welker, 908 So 2d 317 (FLA 2005).
    The Supreme Court of Florida reversed an order denying recusal on facts similar to the present in Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978). There, it held:
    Regardless of whether respondent ruled correctly in denying the motion for disqualification was legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case–the creation of an intolerable adversary atmosphere between the trial judge and the litigant.

    Though she does not do pass on the truth of the facts in form, Judge Dunnigan does so in substance—she rules that “the motion” (unspecified by the judge) is “legally insufficient”, then she enters an order entitled “Order Denying Petitioner’s Motions”, which purports to deny all of the motions. Judge Dunnigan is a jurist of some subtlety, and she is clearly thorough and wise enough to have entered an order entitled “Order Denying Petitioner’s Motion to Disqualify”, but she chose not to do so. Appellant’s Motion to Disqualify is patently legally sufficient on its face; Judge Dunnigan’s response leaves Appellant without direction as to how to have his other motions, the Motion to Restore His Time-Sharing Rights, and his Motion For Relief Pursuant to Fla.R.Civ.P. 1.540(b)(4) and (5)—heard.
    Appellant has been held in contempt by Judge Dunnigan for visiting his daughter’s school on September 13, 2010, and for sending text messages to the Appellee to be relayed to his daughter in the nature of “I love you”. He has been instructed by Judge Dunnigan not to file any further motions, ostensibly in violation of his right to see his daughter and Judge Dunnigan’s duty to be a jurist.
    Appellant was given a trial date, and then saw that trial date washed away by the trial judge on the morning of trial with his witnesses assembled because of some claimed critical need to have the independent legal interests of his child protected in light of his request to have custody of and see his child. Never mind that the Court and the Appellee have ensured that he has not seen his daughter in two years; the Court posits some overriding need why he cannot present evidence of his fitness for custody and to visit like any other divorced parent until the Court has heard from a pro bono independent attorney for the minor child Appellant has not seen in two years.
    Further, when he asks to have the Court consider the opinion of his licensed mental health counselor about his fitness, whom the Court ordered him to see, he is told at the hearing that he cannot file any further motions until he complies with a December of 2009 order that he see a licensed mental health counselor, and until he sees the child’s therapist whom he has already seen, and who refuses to see him further. Further, the December of 2009 order violates due process of law.
    Even further, the Court writes in its September 26, 2011 order that not only can Appellant file no further motions, because the Court finds he has not complied with a December of 2009 order which was not at issue at the hearing and upon which no proofs were taken, he will not have a trial. He cannot have another trial date set owing to a 30-day day-of-trial adjournment until he demonstrates he has complied with the December of 2009 order.
    Even if the Appellant had not complied with the court’s prior order, and Appellant maintains he has done all he can do, the Court’s posture, and its order of September 26, 2011, is in direct contravention to the law, namely, that a party’s previous failure to comply with the court’s order does not justify prohibiting that party from presenting evidence at a hearing on modification. Rose v Ford, 861 So 2d 490 (Fla 4th DCA 2003); Andrews v Andrews, 624 So 2d 391 (Fla 2d DCA 2003).
    What is any reasonable person to think? Appellant is fighting an order which suspends his parenting privileges because he sought full restoration of those privileges after he appeared for a visitation with alcohol on his breath. He decides to get sober, and stay sober, and does so for 2 and ½ years and counting. The custodial parent mother, Appellee, continues to drink, racks up a drunk driving conviction, and then is recorded coming home drunk and obscenely threatens to send away the minor child for reporting her drinking. Nobody seems to care enough to even view the recording, but a stone-cold sober Appellant continues to be denied the right to visit his daughter.
    Judge Dunnigan appointed an Attorney Ad Litem at the request of the Appellee mother for no apparent reason. If anything, the minor child needs protection from the custodial Appellee mother, who has alienated the minor child from the Appellant father and fights his efforts to see the minor child. Judge Dunnigan, on the day of trial, adjourns a trial for 30 days at which she could have given Appellant some relief from his government-enforced separation from his daughter. The judge tells Appellant he can file no further motions until he complies with a December of 2009 order that he sees a therapist who refuses to see him, and until he sees a licensed mental health counselor that he has already seen who is to provide him with insight as to why he files motions to see his daughter, and who he has told the judge he has seen (Transcript of August 23, 2011 hearing, p 86-87). When her written order comes out, the judge has adjourned the trial indefinitely, and orders no further trial date set until Appellant has complied with the hopelessly outdated and illegally issued December of 2009 order. What is any reasonable person to think?
    Appellant filed a legitimate motion for relief from the hopelessly outdated and illegal orders, and to restore his time-sharing privileges in the hopes that someone is going to be able to see the forest for the trees—that Appellant’s rights were restricted for a temporary period for alcohol use, and that he drinks alcohol no more. It is eminently reasonable to believe Judge Dunnigan is biased and prejudiced against Appellant, who is doing his best pro se to simply see his daughter again after 2 and ½ years of insanity. Will Judge Dunnigan stop it? Appellant has every reason to believe she will not, and that she is prejudiced against him.
    Appellant is justly apprehensive that if he files further motions before Judge Dunnigan, he will be jailed by her, precisely what the Florida disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent—the creation of an intolerable adversary atmosphere between the trial judge and the litigant.
    The inquiry is supposed to focus on the reasonableness of the litigant’s belief that he or she will not receive a fair hearing:
    [A] party seeking to disqualify a judge need only show a well-grounded fear that he [or she] will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling. The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially….

    Facts alleged in the motion need only show that the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there…

    The ultimate inquiry is “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Id. This determination must be based solely on the alleged facts–the presiding judge “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.”

    Rogers v. State of Florida, 630 So.2d 513 (Fla. 1993); Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).
    Judge Dunnigan, under the Rules of Judicial Administration 2.330(d)(1) should have disqualified herself before denying Appellant’s motions for relief from orders and that have prevented him from visiting his daughter in 2 years.
    II. The Orders of April 20, 2009, October 26, 2009 , and December 22, 2009 are violative of Due Process of Law, and are
    on their face either void, discharged, satisfied, and/or
    inequitable to apply prospectively, and Appellant’s
    October 7, 2011 motion was legally sufficient on its face.

    Standard of review
    Whether the October 7, 2011 motion for relief from Orders of April 20, 2009, October 26, 2009 , and December 22, 2009 in that they are violative of Due Process of Law, and are on their face either void, discharged, satisfied, and/or inequitable to apply prospectively, was legally sufficient on its face is a question of law for which the standard of review is de novo. Southern Baptist Hosp. of Florida, Inc. v Welker, 908 So 2d 317 (FLA 2005).

    As described hereinabove, the April 20, 2009 order approving the April 13, 2009 stipulation is void, and Appellant sought a declaration thereof in the trial court and relief therefrom pursuant to Fla R.Civ.P. 1.540(b)(4) and (5) in that the order constituted the entry of an order modifying time-sharing when the notice of hearing did not include that issue in violation of Maras v Still, 927 So 2d 192 (Fla 4th DCA 2006); Foerster v Foerster, 885 So 2d 927 (Fla 2d DCA 2004); Gelato v Basch, 658 So 2d 664 (Fla 4th DCA 1995); Owen v Owen, 633 So 2d 1156 (Fla 5th DCA 1994), and in violation of Appellant’s parental rights protected by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 9 of the Constitution of the State of Florida.
    Notice of a hearing on modification of parental responsibility must meet the requirements of Fla R.Civ.P. 1.080, and the opposing party must be given a reasonable time to prepare. Walker v Segro, 848 so 2d 464 (Fla 4th DCA 2003).
    Even if the April 20, 2009 order could withstand due process scrutiny, the October 26, 2009 Order of the Magistrate’s October 7, 2009 Recommended Findings of Facts and Conclusions of Law, as described hereinabove, removed the supervised visitation restrictions, and the October 26, 2009 Order is based upon and attempts to soften the Order of April 20, 2009, which cannot be softened in steps because the Order of April 20, 2009 specifically provides that “when the supervised visitation provision is removed, visitation as outlined in the current marital settlement agreement shall be re-instituted upon termination of supervised visitation”; and the October 26, 2009 Order is also therefore void, discharged, satisfied, and/or it is inequitable to continue to it apply prospectively pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5). The trial court can hardly expect Appellant, indeed all litigants before it, to follow its orders if it refuses and neglects to follow its own orders itself.
    This entry of the order was largely due to the negative testimony provided by PC Green in relation to Appellant on October 2, 2009. She, though she did so illegally, held a carrot out to Appellant on April 13, 2009, and beat him with the stick on October 2, 2009. Her job was to “coordinate parenting”. She had worked at it for one year. Her only contribution to the dispute resolution between the parties had nothing to do with the coordination of any parenting, she only operated in the sphere of the limitation of parenting. She did not fill out page one of any alternative parenting plan. The PC was clearly Appellee’s advocate, on account of issues that are clearly personal to the PC.
    With respect to the November 13, 2011 status conference, Appellant was given no notice or warning that his time-sharing rights were at stake, he appeared unrepresented by counsel, and was unprepared to rebut unfavorable evidence proffered to the Court by the PC, who appeared at the hearing with the November 12, 2009 Status Conference Report to the Court (Exhibit 11 to 10/7/2011 motion, Exhibit 11a ex parte letter to court). The PC’s report was given to the parties for the first time in court on November 13, 2009, and General Magistrate Maulucci adopted it wholesale, without sworn testimony, without an application made for the PC to give testimony, and without the opportunity for cross-examination. The PC’s remarks in her November 12, 2009 report, occasioned only by a legitimate request to have her removed from the case, resulted in the permanent, open-ended suspension of Appellant’s visitation privileges with his daughter, and were precipitated only by the PC’s vindictiveness and anger at being asked off the case. In any case, Magistrate Maulucci’s suspension of Appellant’s parental rights without due process, indeed, without any process, renders the Order of December 22, 2009 approving her recommendations void on its face.
    The entry of the order modifying time-sharing when the notice of hearing did not include that issue in violation of Maras v Still, 927 So 2d 192 (Fla 4th DCA 2006); Foerster v Foerster, 885 So 2d 927 (Fla 2d DCA 2004); Gelato v Basch, 658 So 2d 664 (Fla 4th DCA 1995); Owen v Owen, 633 So 2d 1156 (Fla 5th DCA 1994), is in violation of Appellant’s parental rights protected by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 9 of the Constitution of the State of Florida.
    The December 22, 2009 order suspends Appellant’s parental rights until he “commence individual counseling with a licensed mental health counselor” to “determine and gain insight” why he files motions/pleadings to see his daughter, and although the Wife and the court system have controlled Appellant’s life and relationship with his daughter through exclusion, he is to, by the terms of the Court order, determine “why he is trying to control the Wife and the minor child through the court system.” The December 22, 2009 order also suspends Appellant’s parental rights until he “shall participate in the child’s counseling sessions with her therapist, Sara King.” Appellant met with Ms. King, the minor child’s therapist, three times. She told Appellant that it may take “years” for him to establish visitation with his daughter that was not severely limited by the Court and the former Wife, and that she the therapist would be the judge of when normal visitation could take place.
    Appellant has been upbraided by the trial court for filing motions, and it has been suggested and ordered that he not do so. Appellant can either contest the Appellee and her counsel’s efforts to illegally limit and cut off his right to have a relationship with his daughter, or simply give up and accept that the Appellee has successfully alienated him from his child, and the courts have allowed it to happen. For the Appellee, her counsel, and indeed to some extent the trial court, to suggest and insist that Appellant has no right to contest this matter in the courts is a denial of due process of law.
    The December 22, 2009 Order approving the December 2, 2009 Findings of Facts and Recommendations of Hearing Officer on Parenting Coordinator’s Request for Status Conference is nothing less than downright “Kafkaesque”—he is to “determine and gain insight” why he files motions/pleadings to see his daughter, and although the Wife and the court system have controlled Appellant’s life and relationship with his daughter through exclusion, and he would submit illegally so, from his daughter’s life, he is to determine “why he is trying to control the Wife and the minor child through the court system.” The answer that should be obvious and acceptable to all is that he is trying to see his daughter, and have a relationship with her. Further, the law says that he can, and should, do so.
    The Orders of April 20, 2009, October 26, 2009, and December 22, 2009, on their face, are void, discharged, satisfied, and it is no longer equitable to apply them prospectively, and this Court should declare them so pursuant to Fla R.Civ.P. 1.540(b)(4) and (5).
    III. Appellant’s time-sharing rights should be restored,
    and their continued suspension is a violation of
    Appellant’s Due Process right to have a relationship
    with his daughter, and the same is legally sufficent from
    the face of Appellant’s October 7, 2011 motion.

    Standard of review
    Whether the October 7, 2011 motion to restore time-sharing rights in that their continued suspension is a violation of Appellant’s Due Process right to have a relationship with his daughter, was legally sufficient on its face is a question of law for which the standard of review is de novo. Southern Baptist Hosp. of Florida, Inc. v Welker, 908 So 2d 317 (FLA 2005).

    The United States Supreme Court has held that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children. Ouilloin v Walcott, 434 US 246, 255 (1978); Stanley v Illinois, 405 US 645, 649 (1972). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v Massachusetts, 321 US 158, 166 (1944). And it is now firmly established that “freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v LaFleur, 414 US 632, 639-640 (1974).
    The State of Florida has similarly recognized that legal maxim. In Johnston v Boram, 386 So 2d 1230 (Fla 5th DCA 1980), the court stated “[t]he noncustodial parent should be granted reasonable visitation with a child unless there is proof of extreme circumstances, or the trial court finds that the visitation will adversely affect the welfare of the child.” Id at 1230; see also Kent v Burdick, 573 So 2d 61, 63 (Fla 1st DCA 1990) (noting that absent a finding from the trial court that a parent is unfit, the parent has a due process right to maintain a parental relationship with the child).
    A review of the facts patent of the face of the motion denied by the trial court, and of the history of the case leading thereto, reflects an unwarranted government intrusion into the father-daughter relationship that should be ended forthwith.
    Appellant has been found to be unfit by no court of law. He made a serious error in judgment by appearing for a visitation with alcohol on his breath; however, he has more than made amends to a family court system that continues to stand between him and his daughter, to whom he has also made amends by devoting himself to a life of continuou

  • Glen Gibellina

    continuous sobriety for over two and ½ years now since that incident. He went through a period of supervised visitation with great success over two years ago.
    The real reason is this—“Please, understand, sir, I don’t wish to have the final result be that you not ever be able to contact your daughter again, but it is important for the Court to make sure that you understand that you must abide by the Court’s Order, whether you agree with them or not. You must respect the order of the Court, follow the orders.” This case is not about reunification, it is about punishment, both from the Appellee and from the trial court.
    Following court orders is certainly important or we have chaos; however, insistence on the following of court orders issued in violation of Due Process of Law, and without any objective standards as to compliance with the terms of the order, is simply not right, and it is a denial of Appellant’s Due Process right to have a relationship with his daughter.
    ARGUMENT
    I. Appellant’s October 7, 2011 motion to disqualify was
    legally sufficient on its face.
    Standard of review
    Whether Appellant’s October 7, 2011 motion to disqualify was legally sufficient on its face is a question of law for which the standard of review is de novo. Southern Baptist Hosp. of Florida, Inc. v Welker, 908 So 2d 317 (FLA 2005).
    The Supreme Court of Florida reversed an order denying recusal on facts similar to the present in Bundy v. Rudd, 366 So. 2d 440 (Fla. 1978). There, it held:
    Regardless of whether respondent ruled correctly in denying the motion for disqualification was legally insufficient, our rules clearly provide, and we have repeatedly held, that a judge who is presented with a motion for his disqualification shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification. When a judge has looked beyond the mere legal sufficiency of a suggestion of prejudice and attempted to refute the charges of partiality, he has then exceeded the proper scope of his inquiry and on that basis alone established grounds for his disqualification. Our disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent what occurred in this case–the creation of an intolerable adversary atmosphere between the trial judge and the litigant.

    Though she does not do pass on the truth of the facts in form, Judge Dunnigan does so in substance—she rules that “the motion” (unspecified by the judge) is “legally insufficient”, then she enters an order entitled “Order Denying Petitioner’s Motions”, which purports to deny all of the motions. Judge Dunnigan is a jurist of some subtlety, and she is clearly thorough and wise enough to have entered an order entitled “Order Denying Petitioner’s Motion to Disqualify”, but she chose not to do so. Appellant’s Motion to Disqualify is patently legally sufficient on its face; Judge Dunnigan’s response leaves Appellant without direction as to how to have his other motions, the Motion to Restore His Time-Sharing Rights, and his Motion For Relief Pursuant to Fla.R.Civ.P. 1.540(b)(4) and (5)—heard.
    Appellant has been held in contempt by Judge Dunnigan for visiting his daughter’s school on September 13, 2010, and for sending text messages to the Appellee to be relayed to his daughter in the nature of “I love you”. He has been instructed by Judge Dunnigan not to file any further motions, ostensibly in violation of his right to see his daughter and Judge Dunnigan’s duty to be a jurist.
    Appellant was given a trial date, and then saw that trial date washed away by the trial judge on the morning of trial with his witnesses assembled because of some claimed critical need to have the independent legal interests of his child protected in light of his request to have custody of and see his child. Never mind that the Court and the Appellee have ensured that he has not seen his daughter in two years; the Court posits some overriding need why he cannot present evidence of his fitness for custody and to visit like any other divorced parent until the Court has heard from a pro bono independent attorney for the minor child Appellant has not seen in two years.
    Further, when he asks to have the Court consider the opinion of his licensed mental health counselor about his fitness, whom the Court ordered him to see, he is told at the hearing that he cannot file any further motions until he complies with a December of 2009 order that he see a licensed mental health counselor, and until he sees the child’s therapist whom he has already seen, and who refuses to see him further. Further, the December of 2009 order violates due process of law.
    Even further, the Court writes in its September 26, 2011 order that not only can Appellant file no further motions, because the Court finds he has not complied with a December of 2009 order which was not at issue at the hearing and upon which no proofs were taken, he will not have a trial. He cannot have another trial date set owing to a 30-day day-of-trial adjournment until he demonstrates he has complied with the December of 2009 order.
    Even if the Appellant had not complied with the court’s prior order, and Appellant maintains he has done all he can do, the Court’s posture, and its order of September 26, 2011, is in direct contravention to the law, namely, that a party’s previous failure to comply with the court’s order does not justify prohibiting that party from presenting evidence at a hearing on modification. Rose v Ford, 861 So 2d 490 (Fla 4th DCA 2003); Andrews v Andrews, 624 So 2d 391 (Fla 2d DCA 2003).
    What is any reasonable person to think? Appellant is fighting an order which suspends his parenting privileges because he sought full restoration of those privileges after he appeared for a visitation with alcohol on his breath. He decides to get sober, and stay sober, and does so for 2 and ½ years and counting. The custodial parent mother, Appellee, continues to drink, racks up a drunk driving conviction, and then is recorded coming home drunk and obscenely threatens to send away the minor child for reporting her drinking. Nobody seems to care enough to even view the recording, but a stone-cold sober Appellant continues to be denied the right to visit his daughter.
    Judge Dunnigan appointed an Attorney Ad Litem at the request of the Appellee mother for no apparent reason. If anything, the minor child needs protection from the custodial Appellee mother, who has alienated the minor child from the Appellant father and fights his efforts to see the minor child. Judge Dunnigan, on the day of trial, adjourns a trial for 30 days at which she could have given Appellant some relief from his government-enforced separation from his daughter. The judge tells Appellant he can file no further motions until he complies with a December of 2009 order that he sees a therapist who refuses to see him, and until he sees a licensed mental health counselor that he has already seen who is to provide him with insight as to why he files motions to see his daughter, and who he has told the judge he has seen (Transcript of August 23, 2011 hearing, p 86-87). When her written order comes out, the judge has adjourned the trial indefinitely, and orders no further trial date set until Appellant has complied with the hopelessly outdated and illegally issued December of 2009 order. What is any reasonable person to think?
    Appellant filed a legitimate motion for relief from the hopelessly outdated and illegal orders, and to restore his time-sharing privileges in the hopes that someone is going to be able to see the forest for the trees—that Appellant’s rights were restricted for a temporary period for alcohol use, and that he drinks alcohol no more. It is eminently reasonable to believe Judge Dunnigan is biased and prejudiced against Appellant, who is doing his best pro se to simply see his daughter again after 2 and ½ years of insanity. Will Judge Dunnigan stop it? Appellant has every reason to believe she will not, and that she is prejudiced against him.
    Appellant is justly apprehensive that if he files further motions before Judge Dunnigan, he will be jailed by her, precisely what the Florida disqualification rule, which limits the trial judge to a bare determination of legal sufficiency, was expressly designed to prevent—the creation of an intolerable adversary atmosphere between the trial judge and the litigant.
    The inquiry is supposed to focus on the reasonableness of the litigant’s belief that he or she will not receive a fair hearing:
    [A] party seeking to disqualify a judge need only show a well-grounded fear that he [or she] will not receive a fair trial at the hands of the judge. It is not a question of how the judge feels; it is a question of what feeling resides in the affiant’s mind and the basis for such feeling. The question of disqualification focuses on those matters from which a litigant may reasonably question a judge’s impartiality rather than the judge’s perception of his ability to act fairly and impartially….

    Facts alleged in the motion need only show that the party making it has a well grounded fear that he will not receive a fair trial at the hands of the judge. If the attested facts supporting the suggestion are reasonably sufficient to create such a fear, it is not for the trial judge to say that it is not there…

    The ultimate inquiry is “whether the facts alleged would place a reasonably prudent person in fear of not receiving a fair and impartial trial.” Id. This determination must be based solely on the alleged facts–the presiding judge “shall not pass on the truth of the facts alleged nor adjudicate the question of disqualification.”

    Rogers v. State of Florida, 630 So.2d 513 (Fla. 1993); Livingston v. State, 441 So. 2d 1083, 1086 (Fla. 1983).
    Judge Dunnigan, under the Rules of Judicial Administration 2.330(d)(1) should have disqualified herself before denying Appellant’s motions for relief from orders and that have prevented him from visiting his daughter in 2 years.
    II. The Orders of April 20, 2009, October 26, 2009 , and December 22, 2009 are violative of Due Process of Law, and are
    on their face either void, discharged, satisfied, and/or
    inequitable to apply prospectively, and Appellant’s
    October 7, 2011 motion was legally sufficient on its face.

    Standard of review
    Whether the October 7, 2011 motion for relief from Orders of April 20, 2009, October 26, 2009 , and December 22, 2009 in that they are violative of Due Process of Law, and are on their face either void, discharged, satisfied, and/or inequitable to apply prospectively, was legally sufficient on its face is a question of law for which the standard of review is de novo. Southern Baptist Hosp. of Florida, Inc. v Welker, 908 So 2d 317 (FLA 2005).

    As described hereinabove, the April 20, 2009 order approving the April 13, 2009 stipulation is void, and Appellant sought a declaration thereof in the trial court and relief therefrom pursuant to Fla R.Civ.P. 1.540(b)(4) and (5) in that the order constituted the entry of an order modifying time-sharing when the notice of hearing did not include that issue in violation of Maras v Still, 927 So 2d 192 (Fla 4th DCA 2006); Foerster v Foerster, 885 So 2d 927 (Fla 2d DCA 2004); Gelato v Basch, 658 So 2d 664 (Fla 4th DCA 1995); Owen v Owen, 633 So 2d 1156 (Fla 5th DCA 1994), and in violation of Appellant’s parental rights protected by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 9 of the Constitution of the State of Florida.
    Notice of a hearing on modification of parental responsibility must meet the requirements of Fla R.Civ.P. 1.080, and the opposing party must be given a reasonable time to prepare. Walker v Segro, 848 so 2d 464 (Fla 4th DCA 2003).
    Even if the April 20, 2009 order could withstand due process scrutiny, the October 26, 2009 Order of the Magistrate’s October 7, 2009 Recommended Findings of Facts and Conclusions of Law, as described hereinabove, removed the supervised visitation restrictions, and the October 26, 2009 Order is based upon and attempts to soften the Order of April 20, 2009, which cannot be softened in steps because the Order of April 20, 2009 specifically provides that “when the supervised visitation provision is removed, visitation as outlined in the current marital settlement agreement shall be re-instituted upon termination of supervised visitation”; and the October 26, 2009 Order is also therefore void, discharged, satisfied, and/or it is inequitable to continue to it apply prospectively pursuant to Fla. R.Civ.P. 1.540(b)(4) and (5). The trial court can hardly expect Appellant, indeed all litigants before it, to follow its orders if it refuses and neglects to follow its own orders itself.
    This entry of the order was largely due to the negative testimony provided by PC Green in relation to Appellant on October 2, 2009. She, though she did so illegally, held a carrot out to Appellant on April 13, 2009, and beat him with the stick on October 2, 2009. Her job was to “coordinate parenting”. She had worked at it for one year. Her only contribution to the dispute resolution between the parties had nothing to do with the coordination of any parenting, she only operated in the sphere of the limitation of parenting. She did not fill out page one of any alternative parenting plan. The PC was clearly Appellee’s advocate, on account of issues that are clearly personal to the PC.
    With respect to the November 13, 2011 status conference, Appellant was given no notice or warning that his time-sharing rights were at stake, he appeared unrepresented by counsel, and was unprepared to rebut unfavorable evidence proffered to the Court by the PC, who appeared at the hearing with the November 12, 2009 Status Conference Report to the Court (Exhibit 11 to 10/7/2011 motion, Exhibit 11a ex parte letter to court). The PC’s report was given to the parties for the first time in court on November 13, 2009, and General Magistrate Maulucci adopted it wholesale, without sworn testimony, without an application made for the PC to give testimony, and without the opportunity for cross-examination. The PC’s remarks in her November 12, 2009 report, occasioned only by a legitimate request to have her removed from the case, resulted in the permanent, open-ended suspension of Appellant’s visitation privileges with his daughter, and were precipitated only by the PC’s vindictiveness and anger at being asked off the case. In any case, Magistrate Maulucci’s suspension of Appellant’s parental rights without due process, indeed, without any process, renders the Order of December 22, 2009 approving her recommendations void on its face.
    The entry of the order modifying time-sharing when the notice of hearing did not include that issue in violation of Maras v Still, 927 So 2d 192 (Fla 4th DCA 2006); Foerster v Foerster, 885 So 2d 927 (Fla 2d DCA 2004); Gelato v Basch, 658 So 2d 664 (Fla 4th DCA 1995); Owen v Owen, 633 So 2d 1156 (Fla 5th DCA 1994), is in violation of Appellant’s parental rights protected by the Fourteenth Amendment to the United States Constitution, and by Article I, Section 9 of the Constitution of the State of Florida.
    The December 22, 2009 order suspends Appellant’s parental rights until he “commence individual counseling with a licensed mental health counselor” to “determine and gain insight” why he files motions/pleadings to see his daughter, and although the Wife and the court system have controlled Appellant’s life and relationship with his daughter through exclusion, he is to, by the terms of the Court order, determine “why he is trying to control the Wife and the minor child through the court system.” The December 22, 2009 order also suspends Appellant’s parental rights until he “shall participate in the child’s counseling sessions with her therapist, Sara King.” Appellant met with Ms. King, the minor child’s therapist, three times. She told Appellant that it may take “years” for him to establish visitation with his daughter that was not severely limited by the Court and the former Wife, and that she the therapist would be the judge of when normal visitation could take place.
    Appellant has been upbraided by the trial court for filing motions, and it has been suggested and ordered that he not do so. Appellant can either contest the Appellee and her counsel’s efforts to illegally limit and cut off his right to have a relationship with his daughter, or simply give up and accept that the Appellee has successfully alienated him from his child, and the courts have allowed it to happen. For the Appellee, her counsel, and indeed to some extent the trial court, to suggest and insist that Appellant has no right to contest this matter in the courts is a denial of due process of law.
    The December 22, 2009 Order approving the December 2, 2009 Findings of Facts and Recommendations of Hearing Officer on Parenting Coordinator’s Request for Status Conference is nothing less than downright “Kafkaesque”—he is to “determine and gain insight” why he files motions/pleadings to see his daughter, and although the Wife and the court system have controlled Appellant’s life and relationship with his daughter through exclusion, and he would submit illegally so, from his daughter’s life, he is to determine “why he is trying to control the Wife and the minor child through the court system.” The answer that should be obvious and acceptable to all is that he is trying to see his daughter, and have a relationship with her. Further, the law says that he can, and should, do so.
    The Orders of April 20, 2009, October 26, 2009, and December 22, 2009, on their face, are void, discharged, satisfied, and it is no longer equitable to apply them prospectively, and this Court should declare them so pursuant to Fla R.Civ.P. 1.540(b)(4) and (5).
    III. Appellant’s time-sharing rights should be restored,
    and their continued suspension is a violation of
    Appellant’s Due Process right to have a relationship
    with his daughter, and the same is legally sufficent from
    the face of Appellant’s October 7, 2011 motion.

    Standard of review
    Whether the October 7, 2011 motion to restore time-sharing rights in that their continued suspension is a violation of Appellant’s Due Process right to have a relationship with his daughter, was legally sufficient on its face is a question of law for which the standard of review is de novo. Southern Baptist Hosp. of Florida, Inc. v Welker, 908 So 2d 317 (FLA 2005).

    The United States Supreme Court has held that a natural father, absent a finding that he is unfit, has a due process right to maintain a parental relationship with his children. Ouilloin v Walcott, 434 US 246, 255 (1978); Stanley v Illinois, 405 US 645, 649 (1972). “It is cardinal with us that the custody, care and nurture of the child reside first in the parents, whose primary function and freedom include preparation for obligations the state can neither supply nor hinder.” Prince v Massachusetts, 321 US 158, 166 (1944). And it is now firmly established that “freedom of personal choice in matters of . . . family life is one of the liberties protected by the Due Process Clause of the Fourteenth Amendment.” Cleveland Board of Education v LaFleur, 414 US 632, 639-640 (1974).
    The State of Florida has similarly recognized that legal maxim. In Johnston v Boram, 386 So 2d 1230 (Fla 5th DCA 1980), the court stated “[t]he noncustodial parent should be granted reasonable visitation with a child unless there is proof of extreme circumstances, or the trial court finds that the visitation will adversely affect the welfare of the child.” Id at 1230; see also Kent v Burdick, 573 So 2d 61, 63 (Fla 1st DCA 1990) (noting that absent a finding from the trial court that a parent is unfit, the parent has a due process right to maintain a parental relationship with the child).
    A review of the facts patent of the face of the motion denied by the trial court, and of the history of the case leading thereto, reflects an unwarranted government intrusion into the father-daughter relationship that should be ended forthwith.
    Appellant has been found to be unfit by no court of law. He made a serious error in judgment by appearing for a visitation with alcohol on his breath; however, he has more than made amends to a family court system that continues to stand between him and his daughter, to whom he has also made amends by devoting himself to a life of continuous sobriety for over two and ½ years now since that incident. He went through a period of supervised visitation with great success OVER TWO YEARS AGO.
    Owing to the actions of a Parenting Coordinator who, when requested to be removed from the case for not facilitating any parenting, noticed for hearing nothing but a “Status Conference”, and then authored a libelous report advocating continued monitoring of Appellant, which led to a General Magistrate’s Order suspending, without due process, all parenting time and contact until Appellant “commence individual counseling with a licensed mental health counselor” to “determine and gain insight” why he files motions/pleadings to see his daughter, and although the Wife and the court system have controlled Appellant’s life and relationship with his daughter since 2009 through exclusion, he is to, by the terms of the Court order, determine “why he is trying to control the Wife and the minor child through the court system.” The December 22, 2009 order also suspends Appellant’s parental rights until he “shall participate in the child’s counseling sessions with her therapist, Sara King.”
    This pea under the shell game the family court has been playing with Appellant has now lasted over TWO YEARS. He will never be able to satisfy the terms of that illegally issued order to the subjective satisfaction of the family court. He has seen a counselor on his own, and the child’s therapist will not see him. The Appellee, the mother, says she “wants reunification” (Transcript of August 23, 2011 hearing, page 91-92), but Appellant’s “failure to abide by what parameters have been cut and put in place” is not in the child’s best interest. Likewise, the trial court’s position of August 23, 2011 is that “And now, because of your conduct over the last two years, and your willful violation of no contact, your have now required the Court to completely eliminate the contact.” (Transcript of August 23, 2011 hearing, vol. 2, page 11-12). That is just dead wrong. The trial court eliminated the contact on November 13, 2009, and no matter what Appellant does, the trial court will not let him see his daughter. The real reason is this—“Please, understand, sir, I don’t wish to have the final result be that you not ever be able to contact your daughter again, but it is important for the Court to make sure that you understand that you must abide by the Court’s Order, whether you agree with them or not. You must respect the order of the Court, follow the orders.” This case is not about reunification, it is about punishment, both from the Appellee and from the trial court.
    Following court orders is certainly important or we have chaos; however, insistence on the following of court orders issued in violation of Due Process of Law, and without any objective standards as to compliance with the terms of the order, is simply not right, and it is a denial of Appellant’s Due Process right to have a relationship with his daughter. It is significantly past time for someone within the judicial system who values Due Process of Law to say STOP, enough.

    CONCLUSION
    For all the of foregoing, Appellant requests this Court reverse the October 10, 2011 order of the trial court, and order Hon. Janette Dunnigan to be disqualified pursuant to the Rules of Judicial Administration 2.330(d)(1); to provide relief under Fla.R.Civ.P. 1.540, and order that the prior orders of the Manatee County Circuit Court dated April 20, 2009, October 26, 2009, and December 22, 2009 entered in that court are void, discharged, satisfied, and/or inequitable to apply prospectively; and order the re-institution of the Shared Parenting arrangement and Time-Sharing rights as contained in the Marital Settlement Agreement, Exhibit A of the January 23, 2003 Judgment of Dissolution in 2002-DR-003254 in the Manatee County Circuit Court.

    Respectfully submitted,

    Dated: ______________________________
    Glen Gibellina
    Appellant
    2473 Twin Drive
    Sarasota, FL 34234

    CERTIFICATE OF SERVICE

    I HEREBY CERTIFY that I have served a true and correct copy of the foregoing on Angela D. Tobaygo, Esq., by first class mail at 3307 Clark Road, Suite 201, Sarasota, FL 34231 this 30th day of November, 2011.
    Dated: ______________________________
    Glen Gibellina
    Appellant

    CERTIFICATE OF COMPLIANCE

    The foregoing brief is submitted under Rule 9.210 of the Florida Rules of Appellate Procedure, and I, Glen Gibellina, hereby certify it complies with the font requirements of that rule.
    Dated: ______________________________
    Glen Gibellina
    Appellant

  • brian long

    My story begins with my now ex-wife that decided to try to send me to prison for child porn instead of divorcing me so she would get everything. She was aware of this same crime being committed against my friend James troy but when he could prove that he was not even home when the stuff was downloaded to his computer they covered it up so she knew that they would have no other choice but to cover it up again. I mention this other case as this is how she obtained the pictures she had to go to the police station and look at the pictures as this friend had watched our kids before and they had to make sure that the pictures were not of our kids. She worked as a paramedic in this town for fourteen years so she knew all of them very well and either convinced them to allow her to view these pictures at home or stole them from the police station. In September of 2006 the Spalding county sheriff department came to my home while I was at a job interview and seized my home computer for distribution of pornography after I found a nude photo of my wife on the internet. She told the sheriff that I put this photo on the internet and filed a complaint to have the computer examined. A few days after the seizure of the computer I was served with divorce papers so I began looking through stuff for any evidence of her actions and found a disc that was a backup of her laptop that had several hidden files on it I began to get concerned after knowing what this sheriff did to my friend so I took this disc to a local attorney for safe keeping. About two weeks later we got into an argument about the computer and she said she couldn’t help what sites I went to on the computer and I slipped and told her I had the disc and would prove who did what to the computer and the cover up began. The computer was then retrieved from the Georgia buero of investigations who was supposed to investigate it and according to the report the one photo was examined only but after having the computer for 5 months in early January when I went to pick up the computer I was told that the g.b.i. went through every aspect of it and could not find out who posted this picture to the internet. So why lie to me about who looked into the computer? Because I didn’t get the police report until long after this case was supposed to be closed and after attempting to view the file in person they knew they had to cover this up or risk getting caught for doing it the first time. I will list some other people who have blatantly lied to me in writing and ask why if the report is accurate it should be easy for them to say so and not lie to me.
    Spalding county sheriff deputy tony ranieri destroyed evidence and falsified reports as shown in his letter saying he destroyed the evidence with the sheriff logo on the top.
    Spalding county district attorney ScottBallard who after signing for the evidence and a request to investigate has done nothing and refused to ever meet with me or take my phone calls.
    Janis Davisgovernor’s office who told me that she forwarded the files to the appropriate people and when I asked for their names to follow up she told me she forgot so I asked her to look it up as she would have to document it she refused to even answer.
    David McLaughlin with the attorney general’s office who said in his letter “I am not sure what you want this office to do but I am sure it is out of our jurisdiction” how could he know this if he didn’t know what I wanted and my letter could not have been more clear that I wanted an investigation into this deputy and the district attorney which is within his jurisdiction as it would involve the state in a law suit.
    Carlton peoples who also refused to investigate my allegations of abuse and violations of my rights.
    Steven Harrell at the d.o.j. who after several months of discussing this case with him decided to allow the violations of my right to justice continue.
    Bobbie Bernstein and Mr Moossey of the d.o.j. who’s names are on the letter from their office as persons who worked on my case and according to Mr Purdue of the o.i.g. had to decide whether or not to investigate this case. “Mr Harrell can’t decide whether or not to persue a case that has to be done by an attorney a paralegal is nothing but a glorified secretary”.
    Frank Purdue of the office of the inspector general who tried to tell me in a recorded call that the o.i.g. does not investigate the f.b.i. or the d.o.j. for abuse of power.
    Eric Johnson of the o.i.g. who denied me my rights as well in writing.
    Andrew of the government accountability office (fraudnet) who after a few weeks of reviewing the evidence told me in writing that his office did not take complaints from citizens directly contradicting their web page and their mission statements saying that fraud net is for any citizen to report fraud and abuse of power.
    My case was filed in the district court In Dayton Ohio and the two judges who tried to dismiss it violated civil rights code title 42 sections 1987 requiring them to prosecute violations of this nature I will paste a copy of that law here for your convenience it is also in my filings. If this has peeked your interest please read file three of my submission as it is a response to the courts when I was told my case needed to be well written. Now after re-reading it, it could use some finishing touches but my intentions are clear and the facts are the facts and these people are attempting to cover up child porn so why would they do this? Do you remember when a lot of people in Washington dc were caught with the same type of material on their computers were they set up as well to get them out of the way? I have told you of two stories are their more is this why they are covering it up? I know this cannot be any part of a legitimate investigation as there have been more than one attempt on my life and my children have been parentally kidnapped to try to silence me but I will have justice will you help me by publishing my story? If so please contact me at
    Brian long
    2064 randy scott dr. apt a
    West carrollton oh. 45449
    Cell 937-554-0298
    EXPCITE-
    TITLE 42 – THE PUBLIC HEALTH AND WELFARE
    CHAPTER 21 – CIVIL RIGHTS
    SUBCHAPTER I – GENERALLY

    -HEAD-
    Sec. 1987. Prosecution of violation of certain laws

    -STATUTE-
    The United States attorneys, marshals, and deputy marshals, the
    United States magistrate judges appointed by the district and
    territorial courts, with power to arrest, imprison, or bail
    offenders, and every other officer who is especially empowered by
    the President, are authorized and required, at the expense of the
    United States, to institute prosecutions against all persons
    violating any of the provisions of section 1990 of this title or of
    sections 5506 to 5516 and 5518 to 5532 of the Revised Statutes, and
    to cause such persons to be arrested, and imprisoned or bailed, for
    trial before the court of the United States or the territorial
    court having cognizance of the offense.

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