xxx
Plaintiff/Petitioner in pro per
COLORADO COURT OF APPEALS
| XXX,
Plaintiff/Petitioner, vs. XXX, Defendant/Respondent. |
Case No.:xxxx
PETITIONER’S RESPONSE TO ORDER TO SHOW CAUSE |
NOW COMES XXX, Plaintiff/Petitioner, and files this Response to Order to Show Cause, and hereby avers as follows:
MEMORANDUM TO SHOW CAUSE
- THE RIGHT TO APPEAL
XXX (wife) appeals the property division and maintenance portions of the district court’s permanent orders entered in connection with the dissolution of her marriage to CCCC (husband). She also appeals from two district court orders denying for lack of jurisdiction her post-trial relief under C.R.C.P. 59 (a) and C.R.C.P. 60 (b).
The Appellant also has a right to appeal by virtue of application of Section 14, 10 and 113 of the C.R.S. 2019. This is because the Court ignored her financial contributions towards the marital debts and on the former marital home while the husband was deployed.
Moreover, a party dissatisfied with a full order that requires any party to pay a penalty or benefits, or denies a claimant any benefit or penalty, may file a Petition or Review or a Petition to Review and Request for Transcript with the judge as per Section 8-4-301 of the C.R.S. The Appellant herein is thus entitled to lodge the appeal as a matter of right.
- CONCRETE EVIDENCE OF THE RESPONDENT’S FRAUD
Further, in Re Marriage of Eisenhuth, 976 P. 2d 896, 901 (Colo. App. 1999), the court held that in instances where the record contains competent evidence supporting its factual findings and property division, the other party will not overturn on appeal. The Petitioner herein has concrete evidence on the fraud of the Respondent hence entitled to not only trial but appeal upon dissatisfaction of the decision of the district court.
Moreover, the procurement of the evidence of fraud committed by the Respondent need not be produced by the Appellate Court. In the case of Harriman v Cabela’s Inc. 2016 COA 43, the Court held that the appellate courts may take judicial notice of records of related court proceedings under CRE 201.
Moreover, the Respondent was authorized by virtue of an Order dated November 7, 2018, among other things to sell the marital home within 90 days of the issuance of the order. Both parties were also instructed to act in good faith regarding the sale. They were also instructed to jointly agree as to how the home could be listed, whether the realtor could be employed and who the precise realtor would be. However, the Respondent fraudulently sold the said property to United LLC while parties agreed to contracting with TSE Properties, the 1st, 2nd and third defendants connive to sell the listed home to United LLC upon closing based on color of law without consent of the Appellant. While selling the home at undervalue, the property was in turn fraudulently sold to United LLC at an exorbitant rate.
The Appellant also demonstrated that there are several reasons as to why she continued to suffer irreparable harm in the District Court. However, she was denied stay. She thus stands to suffer numerous losses incurred as a result of the acts of the Respondent and attorney. The results of the preceding parties have led the Appellant bearing all the debts. Others include the frauds perpetrated by the Respondent regarding dissolution of marital case. The Appellant pleaded with the lower courts to table and plead the preceding complaints but she was denied such right. Hence the need for this appeal to bring to book the actions of the Respondent.
- FRAUD UPON THE DISTRICT COURT
Notwithstanding the district court has the discretion to decide matters before them as they deem fit as endorsed by the cases of Re Marriage of Lafaye, 89 P. 3D 455, 462 (Colo. App. 2003); Re Marriage of Payne, 897 P. 2d 888, 889 (Colo. App. 1995) regarding entering orders to implement equitable decisions, the courts are bound not to abuse the said discretion. Accordingly, in the current case the District Court unlawfully exercised its discretion and abused the same hence the lodging of the appeal by the Appellant herein.
Moreover, the District Court’s permanent orders were unclear and unambiguous as to whether she was barred from refinancing the former marital home. The Court expressly stated “[e]ach party shall have [sixty] days to refinance or modify any loan or credit for which they will now be responsible in order to remove the other party’s name from that loan.” The preceding order conflicts with the initial order that the home be sold and not refinanced hence the issue is not moot.
The fraud of the District Court is also evident in the omission of the Respondent’s “military and retirement” plans and “other bank account(s)” in its property division. In the case of Re Marriage of Zander, 2019 COA 149, 27, the appellate court held that it will only consider an argument that is supported by legal authority or any meaningful legal analysis. Consequently, the Petitioner’s appeal is backed by legal authority and arguments hence concrete. The orders issued by the District Court are also a clear demonstration of the fraud of the District Court.
The District Court also treated the Appellant unfairly owing her inability to afford an attorney, was treated unfairly by the court. Colorado law provides that a court shall award reasonable attorney fees against any party who has brought or defended a civil action, either in whole or in part, that lacked substantial justification. C.R.S. Sections 13-17-102 (2). However, the District Court acted in contradiction to this the contempt and subsequent Attorney fee awarded against the Appellant as the said order was made without a fair trial and the claim of the Respondent lacked substantial justification as the Respondent filed her 2016 and 2017 tax retuned by herself. Further, no joint tax was filed between the parties contrary to what was espoused by the Respondent in their contempt proceedings thus not liable for contempt.
The award of the attorney fees was also vague and groundless and patently erroneous and unsupported by the evidence. The determination of what constitutes a reasonable award of attorneys’ fees is a question for the trial judge and will not be disturbed unless it is patently erroneous and unsupported by evidence. The preceding was held in the case of Stuart v, North Shore Water & Sanitation District., 211 P.3d 59, 63 (Colo. App. 2009).
The proper starting point to determine the amount of reasonable fees is by calculating the lodestar amount as was held in the case of Ann Water Development Inc v City v Alamosa, 874 P. 2d 352, 386 (Colo. 1994). The lodestar amount represents the number of hours reasonably expended on the litigation multiplied by a reasonable hourly rate. This was held in the cases of City of Wheat Ridge v Cerveny, 913 P. 2d 1110, 1127 n. 5 (Colo. 1996) (quoting Hensley v Eckhart, 461 U.S. 424, 433 (1983)).
Moreover, the case of Mercantile Adjustment Bureau, L.L.C. v Flood, 287 P. 3d 348, 352 (Colo. 2012) the court held that under the lodestar method, the court calculated the reasonable amount of attorneys’ fees by determining the number of hours reasonably expended on litigation and then multiplying that number by a reasonable hourly rate. The preceding criteria was not reasonably followed by the court.
Additionally, Rule 107 entitles the Appellant to notice of the charged and an opportunity to respond at a trial on the merits by cross-examining adverse witnesses and by presenting evidence and witnesses of her own. C.R.C.O. 107 (d). Accordingly, the Appellant did not receive the full panoply of the protections in proceedings hence inconsistent with the due process. This is backed by the case of Harris v United States, 382 U.S. 162, 166 n. 4 (1965) where the court stated that the due process of the law in prosecution of contempt, except of that committed in open court, requires that the accused shall be advised of the charges and have a reasonable opportunity to meet them by way of defense or explanation.
Moreover, the contempt claim lacked substantial justification and was substantially frivolous, substantially groundless, and substantially vexatious and calculated to run the petitioner. Id. Sections 13-17-101 (4). The Appellant had severally denied having a joint tax return in 2016 with the Respondent as alleged by the Respondent in their Contempt proceedings and the last joint taxes refund done together by the Petitioner and the Respondent was 2015. Also, other purported subsequent joint tax returns were an issue of identity theft according to the IRS investigation.
The District Court also violated the due process rights of the Appellant by issuing its permanent orders without considering her numerous attempts to refinance the former marital home. The court also erred in denying her request for maintenance despite the Respondent’s 206 fraudulent tax return used to calculate income.
Additionally, the District Court erred in denying the Petitioner her C.R.C.P. 59 (a) and C.R.C.P. 60 (b)) (2) relief from the permanent orders. On October 1, 2019, the appellant filed a notice of appeal in case 19CA1777 challenging, among other things, the April 18th order. However, a motions division dismissed that appeal with prejudice as untimely hence unfair to her case.
The Appellant also requested stay severally hoping to bring the Respondent’s fraud but was denied the orders by the District Court. The law governing stay pending appeal is controlled by C.A.R. 8 (a) which provides as follows:
- A party must ordinarily move first in the district court for the following relief:
- A stay of the judgment or order of a district court pending appeal
- Approval of supersedeas bond, or
- An order suspending, modifying, restoring, or granting an injunction while an appeal is pending
- A motion for relief under rule 8 (a) (1) may be made to the appellate court.
Under the C.A.R. (8), such case depends on a four factor case:
- Whether the moving party has made a strong showing that likely to prevail on the merits
- Whether the moving party will be irreparably absent a stay
- Whether other interested parties will by a stay and,
- Whether the public interest will be served by granting stay.
Moreover, according to on treaties, such stay in case should be granted only in “grievous injustice”, as a result of a trial court judgment, “irreparably injured absent to a stay and prejudice” will prevail if a stay is not granted. This is stipulated in the Family Law and Practice Treatise Statue 58.02 [2][b], statues 14-10-102(2)(b) in which it mitigates harms done spouse caused by the dissolution process.
Other than failing to address the undoing of fraud occasioned by the Respondent on the Appellant, the District Court continued to occasion the Appellant fraud. The Appellant attempted to bring the fraud accounts back to court with the hope of settling their disputed based on the evidence of continuous fraud. However, the District Court denied every motion to show continuous fraud and injury being occasioned to the Appellant and her children.
REASONS WHEREFORE, PREMISES CONSIDERED, Petitioner respectfully requests this Honorable Court not to dismiss this appeal, as doing so would continue injustice against her.
Dated this ____ day of XXX.
Respectfully Submitted,
___________________________________
XXXX,
Plaintiff/Petitioner in pro per
VERIFICATION
I, Toi Gillies, being duly sworn depose and say that I have read the foregoing Response to Order to Show Cause and know the contents thereof. That the same is true of my own knowledge except as to those matters and things stated upon information and belief, and as to those things, I believe them to be true.
_________________________________
(Sign in the presence of a Notary Public)
Sworn to and subscribed before me this ___ day of July, 2022.
______________________________
Notary Public
________________________________________
(Printed name of Notary Public)
My Commission Expires: ____________________
CERTIFICATE OF SERVICE
This is to certify that I have duly served the within Response to Order to Show Cause upon all parties herein via email this ____ day of July, 2022 addressed as follows:
Insert Kade’s Attorney’s Contact Information
Dated this ____ day of July, 2022.
Yours Sincerely,
___________________________________
Toi Gillies
Petitioner in pro per