Trial Transcript in Case Captioned Michael McKinzy v. Carletha McKinzy Case No. WD81013 Held On Monday January 9, 2017

1 IN THE MISSOURI COURT OF APPEALS
2 WESTERN DISTRICT
3 MICHAEL MCKINZY, )
)
4 Appellant, )
)
5 v. ) W.D. No. 81013
)
6 CARLETHA MCKINZY (GASTON), )
)
7 Respondent. )
8 IN THE JACKSON COUNTY CIRCUIT COURT
16TH JUDICIAL CIRCUIT, DIVISION 43
9 Commissioner David Kimminau, Presiding
10 MICHAEL MCKINZY, )
)
11 Petitioner, )
)
12 v. ) Cause No. 02FC200809-04
)
13 CARLETHA MCKINZY (GASTON), )
)
14 Respondent. )
15 TRANSCRIPT ON APPEAL
16 APPEARANCES:
17 Mr. Michael McKinzy Ms. Sandra Hessenflow
9606 W. 86th Street, Apt. D Attorney at Law
18 Overland Park, KS 66212 4520 Main, Suite 700
Pro Se Kansas City, MO 64111
19 For: Respondent
20
21
22
23 Transcribed by
Shawna L. Anderson, CET
24 Certified Electronic Transcriber
Official Transcription Vendor for
25 Office of State Courts Administrator
1 INDEX
2 MONDAY, JANUARY 9, 2017
3 PAGE
4 Motion for Summary Judgment:
5 RESPONDENT’S EVIDENCE:
6 MICHAEL MCKINZY
Direct Examination by Ms. Hessenflow .............................................................. 11
7
Motion Overruled .................................................................................................... 20
8
9 Motion for Default Judgment:

11 CARLETHA GASTON
12
13
14 Motion to have Admissions Deemed Admitted:

16 CARLETHA GASTON
17
18
19 Motion to Dismiss Requests for Affirmative Relief ................................................ 29
20 Motion in Limine ..................................................................................................... 33
21
PETITIONER’S EVIDENCE:
22
CARLETHA GASTON
23 Direct Examination by Mr. McKinzy .................................................................. 37
24
25
2
INDEX
1 (Continued)
2 MONDAY, JANUARY 9, 2017
3 PAGE
5 MICHAEL MCKINZY
6
7 PETITIONER’S EVIDENCE:
8 CARLETHA GASTON
Direct Resumed Examination by Mr. McKinzy .................................................. 54
9 Cross-Examination by Ms. Hessenflow .............................................................. 91
Redirect Examination by Mr. McKinzy ............................................................ 106
10
12 CORRINE MCKINZY
Direct Examination by Ms. Hessenflow ............................................................ 112
13 Cross-Examination by Mr. McKinzy ................................................................ 114
14
PETITIONER’S EVIDENCE:
15
MICHAEL MCKINZY
16 Direct Testimony by Mr. McKinzy ................................................................... 116
Cross-Examination by Ms. Hessenflow ............................................................ 117
17 Further Testimony by Mr. McKinzy ................................................................. 126
18 CARLETHA GASTON
Redirect Resumed Examination by Mr. McKinzy ............................................ 133
19 Recross-Examination by Ms. Hessenflow ......................................................... 144
Further Redirect Examination by Mr. McKinzy ............................................... 166
20
22 MICHAEL MCKINZY
Direct Resumed Examination by Ms. Hessenflow ............................................ 168
23
CARLETHA GASTON (RECALLED)
24 Direct Resumed Examination by Ms. Hessenflow ............................................ 211
Cross-Examination by Mr. McKinzy ................................................................ 216
25 Redirect Examination by Ms. Hessenflow ........................................................ 222
3
EXHIBITS
1
RECEIVED
2
PETITIONER’S EXHIBITS:
3
102 ........ Form 14..................................................................................................... 77
4 110 ........ Withholding Order.................................................................................. 137
121 ........ Child Support document .............................................................................--
5 133 ........ Affidavit of Credit ......................................................................................--
134 ........ Affidavit of Credit ......................................................................................--
6 136 ........ Letter ....................................................................................................... 143
137 ........ Letter ....................................................................................................... 143
7 145 ........ Letter ....................................................................................................... 166
162 ........ Respondent’s Asset and Debt Statement .................................................. 60
8 163 ........ Income and Expense Statement of Respondent ....................................... 70
164 ........ UMB Bank Statement............................................................................... 57
9 165 ........ 2015 Bank Statements ................................................................................--
166 ........ Respondent’s 2015 W-2 ........................................................................... 56
10 168 ........ Payment History ..................................................................................... 134
169 ........ Payment History ..................................................................................... 134
11
12 RESPONDENT’S EXHIBITS:
13 1............. Findings, Recommendation, Judgment, Decree of Divorce .......................--
3............. Child Support Printout ............................................................................ 158
14 4............. Entry of Appearance ...................................................................................--
5............. Respondent’s Modification Asset and Debt Statement ............................ 92
15 6............. Petitioner’s Statement of Assets and Debts ............................................ 190
9............. Financial Statement Affidavit.....................................................................--
16 10........... Court case information ...............................................................................--
11........... Letter from Smithsonian ......................................................................... 193
17 13........... Affidavit of Credit by Custodial Parent .....................................................--
14........... Child Support Printout ............................................................................ 159
18 15........... Printout .......................................................................................................--
16........... Motion to Modify .......................................................................................--
19 17........... Affidavit......................................................................................................--
18........... Affidavit......................................................................................................--
20 19........... Petition filed in Federal Court ................................................................ 199
20........... Opinion from 10th Circuit Federal Court of Appeals ............................ 204
21 21........... Printout of all cases filed by Petitioner in various courts ....................... 201
22........... Proposed Modification Decision and Order Nunc Pro Tunc 12/12/07 ......--
22 23........... Administrative Modification Order ............................................................--
25........... Payment History as of 4/13/16 ...................................................................--
23 26........... Delinquent Maintenance, Child Support, Interest Calculation 4/13/16 .....--
27........... Letter ...........................................................................................................--
24 28........... Google Plus profile .....................................................................................--
29........... Payment History Report .............................................................................--
25 30........... Payment History Report .............................................................................--
4
EXHIBITS
1 (Continued)
2 RECEIVED
3 RESPONDENT’S EXHIBITS:
4 31........... Certification filed 7/10/01 ..........................................................................--
32........... Administrative Order ..................................................................................--
5 33........... Billing Statement and Arrearage Notice 11/3/06 .......................................--
34........... Payment History Printout ...........................................................................--
6 36........... Order of Consolidation ...............................................................................--
40........... Motion for Summary Judgment................................................................ 16
7 42........... Pay Stubs ................................................................................................ 118
43........... Property Account Summary ................................................................... 192
8 45........... Email ....................................................................................................... 208
46........... Income and Expense Statement of Respondent ..................................... 101
9 47........... Income and Expense Statement of Respondent (summer months) .......... 99
48........... Income and Expense Statement of Respondent ..................................... 100
10 49........... Income and Expense Statement of Respondent ....................................... 87
50........... Contract for Legal Services .................................................................... 213
11 51........... Western District Court of Appeals decision ........................................... 202
52........... Wage Withholding Statement................................................................. 164
12 53........... Pay Stub .................................................................................................. 121
54........... Motion to Terminate Child Support ......................................................... 47
13 60........... Income and Expense Statement .............................................................. 125
62........... Google website information ................................................................... 187
14 64........... Google website information ................................................................... 179
65........... Letter from Petitioner to President Obama ............................................. 207
15 66........... Scribd.com information .......................................................................... 179
70........... Writ filed against Judge Campbell .............................................................--
16 71........... Court Records ......................................................................................... 196
72........... Docket Entries .......................................................................................... 42
17 75........... Email confirming submission of Respondent’s amended responses ....... 27
76........... Child Support Printout ............................................................................ 161
18 77........... Unidentified ................................................................................................--
78........... Email from Ms. Hessenflow to Mr. McKinzy.......................................... 24
19 79........... Affidavits .................................................................................................. 47
20
o0o
21
22
23
24
25
5
1 (January 9, 2017)
2 THE CLERK: Michael McKinzy v. Carla [sic] McKinzy (Gaston),
3 02FC200809-04.
4 COMMISSIONER KIMMINAU: Appearances, please.
5 MR. MCKINZY: Michael McKinzy, appearing for the Petitioner pro se.
6 COMMISSIONER KIMMINAU: All right.
7 MS. HESSENFLOW: Sandra Grant Hessenflow on behalf of the
8 Respondent, who’s present in person.
9 COMMISSIONER KIMMINAU: And, Mr. McKinzy, you intend to proceed
10 without an attorney; is that correct?
11 MR. MCKINZY: That is correct, Your Honor.
12 COMMISSIONER KIMMINAU: All right. We have multiple motions to
13 take up prior to the start of the actual evidence.
14 Mr. McKinzy, why don’t you recite for me what you think motions are
15 pending. Let’s take them one at a time.
16 MR. MCKINZY: Okay. The most newly filed motion, which was filed or
17 served on the 7th, was a renewed motion for summary judgment that was served on
18 the 7th by mail.
19 COMMISSIONER KIMMINAU: 7th of?
20 MR. MCKINZY: January.
21 MS. HESSENFLOW: Saturday night.
22 COMMISSIONER KIMMINAU: Saturday night. I don’t see it on Case.net.
23 MR. MCKINZY: I have a courtesy --
24 COMMISSIONER KIMMINAU: I haven’t had a chance to look at it.
25 Weren’t we supposed to, according to the prior scheduling order, have all motions
6
1 and discovery completed by a date certain, any -- any new pleadings, et cetera?
2 MR. MCKINZY: I received pleadings, so I assumed that the -- it was
3 reopened. The guardian ad litem discovery -- motion.
4 COMMISSIONER KIMMINAU: I’m sorry, the what?
5 MR. MCKINZY: The Respondent’s motion was filed and I assumed the
6 Court had extended --
7 COMMISSIONER KIMMINAU: The motion in limine, you mean?
8 MR. MCKINZY: Yes.
9 COMMISSIONER KIMMINAU: All right. Okay. Which is a sanction sort
10 of motion --
11 MR. MCKINZY: Okay.
12 COMMISSIONER KIMMINAU: -- as opposed to a new pleading.
13 Any response, Ms. Hessenflow, to the new motion for summary judgment?
14 MS. HESSENFLOW: Your Honor, I am prepared to address that.
16 MS. HESSENFLOW: Even though I got it a day and a half ago, I don’t want
17 any issues left pending that could be refiled at a later date, so I got myself ready, and
18 we can proceed with that.
19 COMMISSIONER KIMMINAU: All right. Mr. -- since I haven’t seen your
20 motion, Mr. --
21 MR. MCKINZY: I have a courtesy copy for the Court this morning.
22 COMMISSIONER KIMMINAU: Well, great. I’m not going to read it right
23 now.
25 COMMISSIONER KIMMINAU: I want you to make your argument with
7
1 respect to why this Court should enter a summary judgment with respect to your
2 motion to modify, which is in the nature of terminating maintenance and determining
3 no arrearages, as I understand it; is that correct?
4 MR. MCKINZY: Declaratory judgment for declaration of rights regarding
5 the whole matter that was filed originally by my counsel at the time.
6 COMMISSIONER KIMMINAU: Okay. Your motion says you shouldn’t
7 have to pay maintenance, and it also says you should be -- there should be no -- there
8 should be no arrearages --
9 MR. MCKINZY: Right.
10 COMMISSIONER KIMMINAU: -- in your case, correct?
11 MR. MCKINZY: And I declared that I didn’t owe any.
12 COMMISSIONER KIMMINAU: Right. All right. So your -- your
13 argument on this new -- you filed a motion for summary judgment previously in this
14 cause and then you withdrew it. I think it was filed April 18.
15 MR. MCKINZY: That’s correct.
16 COMMISSIONER KIMMINAU: And then you withdrew it in early May of
17 2016; am I right?
18 MR. MCKINZY: That is correct.
19 COMMISSIONER KIMMINAU: So what is this new motion for summary
20 judgment referencing?
21 MR. MCKINZY: It’s that the underlying original order that was issued back
22 in 2002 was void and all subsequent money that’s derived from that order -- it’s a
23 null and void order, and therefore all of the income that was attached is
24 notwithstanding. I did not receive nor did Petitioner or the Respondent receive
25 proper notice by certified mail of the financial -- financial responsibility notice, or the
8
1 actual establishing order was not served by certified mail pursuant to statute.
2 COMMISSIONER KIMMINAU: This is the judgment of 2002?
3 MR. MCKINZY: The original.
4 COMMISSIONER KIMMINAU: So 15 years ago?
5 MR. MCKINZY: Yes, Your Honor. If it was void then, it’s void today.
6 COMMISSIONER KIMMINAU: Why is it now being raised Saturday night
7 before Monday morning trial?
8 MR. MCKINZY: Because after preparation, I discovered that there was
9 other case law at the time. When I pursued it, there was no case law that addressed
10 the voidance of administrative state orders that are not properly served.
11 COMMISSIONER KIMMINAU: You’re -- you’re suggesting that there was
12 no proper notice; is that right?
13 MR. MCKINZY: Yes, I was denied due process of law regarding the initial
14 establishment order by the Division of Child Support Services.
15 COMMISSIONER KIMMINAU: All right. Anything further from you?
16 MR. MCKINZY: Regarding the motion?
17 COMMISSIONER KIMMINAU: Yeah, that motion. We’ll get to the others.
18 MR. MCKINZY: It entails that I -- myself and the Respondent reside at 8609
19 East 87th Street as a family.
20 COMMISSIONER KIMMINAU: Just -- just a second.
22 COMMISSIONER KIMMINAU: Is this -- is this order referencing the
23 administrative order that was entered in this case?
24 MR. MCKINZY: Yes, that the child support that was entered in the divorce
25 was based on an administrative order that had been entered in July.
9
1 COMMISSIONER KIMMINAU: Well, you were present for the dissolution.
2 MR. MCKINZY: Yes, I was present.
3 COMMISSIONER KIMMINAU: And you --
4 MR. MCKINZY: I was.
5 COMMISSIONER KIMMINAU: -- and you were able to make your
6 arguments there regarding the issues of the -- of the prior administrative order?
7 MR. MCKINZY: It wasn’t until the modification in 2007, or 2005 originally,
8 that I began discovery.
9 COMMISSIONER KIMMINAU: Well, why didn’t you raise the issue of
10 notice to the divorce court in -- whenever the divorce occurred?
11 MR. MCKINZY: I wasn’t aware that there was -- I was entitled to be served
12 a notice of financial responsibility and a -- a -- be served a copy of establishment
13 order to allow me to have 20 days, as I invoke in the modification hearing.
14 COMMISSIONER KIMMINAU: Is the State contending -- or the
15 government contending that they sent notice to you at your last known address?
16 MR. MCKINZY: Yes, which they note as being 3743 Flora, which is my
17 parents’ current address. And I know that they served my wife at the current time at
18 4215 Tracy, which is her parents’ address. We resided -- had purchased a house in
19 August of 2002 and was residing there as a married couple, with all four children, at
20 8609 East 87th Street.
21 COMMISSIONER KIMMINAU: All right. Anything further?
22 MR. MCKINZY: That’s --
23 COMMISSIONER KIMMINAU: The notice is the issue, right?
24 MR. MCKINZY: That is the notice, due process of law that I was not
25 properly --
10
1 COMMISSIONER KIMMINAU: Ms. Hessenflow, your response?
2 MS. HESSENFLOW: Yes, Your Honor. Since I didn’t have time to type up
3 and include my own affidavits and exhibits, I’d like to introduce my evidence that I
4 would have in this matter at this time, and I’d ask that the Petitioner take the stand
5 and be sworn so that I can ask him a few questions regarding the basis for his motion.
6 COMMISSIONER KIMMINAU: All right. Mr. McKinzy, if you would,
7 approach the witness chair and wait to be sworn, please. Would you raise your right
8 hand, sir?
9 (Witness sworn.)
10 COMMISSIONER KIMMINAU: Please have a seat. And as you know from
11 prior experience, that microphone doesn’t amplify, it just records, so let me ask you
12 to speak up with your responses.
14 COMMISSIONER KIMMINAU: Ms. Hessenflow?
15 MICHAEL M C K I N Z Y, called as a witness in behalf of the
16 RESPONDENT, being duly sworn, testified as follows:
17 DIRECT EXAMINATION BY MS. HESSENFLOW:
18 Q. Could you state your name for the record, please?
19 MS. HESSENFLOW: Actually, I’m sorry, Your Honor, there’s a party in the
20 courtroom. I’d like to invoke the rule against --
21 COMMISSIONER KIMMINAU: If there’s any person in the courtroom
22 other than a party to this case who intends to testify or expects to be called as a
23 witness, you’ll need to wait out in the hallway until it’s time to testify.
24 Are you expecting to testify, ma’am?
25 MR. MCKINZY: Yes.
11
1 UNIDENTIFIED SPEAKER: I’m here for support. I mean --
2 MR. MCKINZY: Well --
3 UNIDENTIFIED SPEAKER: -- if it’s necessary, I’ll --
4 COMMISSIONER KIMMINAU: Is that -- is that one of your witnesses?
5 MR. MCKINZY: That is my wife. My current wife.
6 COMMISSIONER KIMMINAU: Is she going to testify?
7 MR. MCKINZY: Yes, she was -- I was intending, but I can void if she has to
8 be removed, because I do -- would like her to observe the -- so I will not call her as a
9 witness.
11 MS. HESSENFLOW: Your Honor, I’d like to call her and ask her a few
12 questions; however, once we finish these preliminary things --
13 COMMISSIONER KIMMINAU: Uh-huh.
14 MS. HESSENFLOW: -- I have no objection to calling her out of order. I
15 have like six questions for her. I’m not calling her so I can kick her out all day and
16 she can’t watch. I’m happy to take her out of order. But if she’s here, I have a
17 couple questions I would like to ask her.
18 MR. MCKINZY: Well, she would not be properly served. I would assume,
19 if I was calling her and she was not served, then --
20 COMMISSIONER KIMMINAU: Well, she’s here. She doesn’t need to be
21 served, Mr. McKinzy.
23 COMMISSIONER KIMMINAU: So, ma’am, if you’ll wait out in the
24 hallway until it’s your turn to testify, then we’ll -- then you can stay in the courtroom
25 thereafter, all right?
12
1 UNIDENTIFIED SPEAKER: Okay.
2 COMMISSIONER KIMMINAU: Thank you.
3 BY MS. HESSENFLOW:
4 Q. The basis for your motion for summary judgment is that you did not receive a
5 certified mail copy of the notice of finding and financial responsibility way back
6 when the very first proceedings took place in the administrative matter, correct?
7 A. That is correct that I did not receive it when I was called by Child Support,
8 and I went down there because I was paying directly to my current wife child support
9 and --
10 MS. HESSENFLOW: Your Honor, I’d ask to strike as nonresponsive.
11 COMMISSIONER KIMMINAU: Yes. Mr. McKinzy, play -- pay close
12 attention --
14 COMMISSIONER KIMMINAU: -- to what the question is, and please
15 answer only it, and then -- and this will move much better.
18 Q. Does paragraph 1 of your pleading state that the Division of Child Support
19 Enforcement failed to serve you by certified mail with copies of its notice of financial
20 responsibility and its administrative child support order to your last known address?
21 A. That is correct.
22 Q. And based upon that, you believe that they did not have jurisdiction or
23 jurisdiction over you individually to proceed with the very first order that led to all
24 these other dominos that came after, correct?
13
1 Q. And based on that, you are asking the Court, as a matter of summary
2 judgment, to find that that judgment is void and therefore everything emanating
3 thereafter is void?
4 A. I’m asking for the establishing order to be found void, yes.
5 Q. Now, the pending pleadings that are still pending for today are a motion you
6 filed on 5/2/16, asking that the admissions you propounded to the Respondent be
7 deemed admitted. That’s still pending today, correct?
8 A. I believe so.
9 Q. Does that ask the Court to do anything about void judgments for lack of
10 service by certified mail?
11 A. No, it does not.
12 Q. The other motion that’s still pending is a motion for default judgment you
13 filed on 5/17/16 with regard to discovery that you propounded to the Respondent that
14 you believe was not complied with in a timely manner. That’s still pending today,
15 right?
16 A. That is right to my understanding.
17 Q. Does that say anything about finding old administrative orders void?
18 A. No, it does not.
19 Q. You also have your motion to modify and motion for declaratory judgment,
20 the main motion you filed on September 2, 2015, correct?
21 A. Yes, by my counsel.
22 Q. Does that motion in any way ask the Court to set aside or to find void the
23 original judgment?
24 A. It asks that I have no arrearage determined, which if there was no child
25 support entered or due, I would have no arrearage today.
14
1 Q. But it does not ask the Court to find that based upon that old original order
2 being void, does it?
3 A. No, it asks for a declaratory judgment in -- in the motion.
4 MS. HESSENFLOW: Your Honor, I move that the motion for summary
5 judgment be overruled. There are no pending pleadings at this time asking the Court
6 to declare that this judgment is void, therefore there cannot be a summary judgment
7 without an underlying pleading or pleadings based thereon. However, I’m prepared
8 to address it on the facts as well, so I’d ask the Court to stay your decision so that we
9 have some evidence for the record on this matter.
10 COMMISSIONER KIMMINAU: Well, I think that’s the most well-advised
11 course to take is I’ll take it under advisement, pending the conclusion of this trial
12 with respect to the facts that are going to be presented.
13 So, Mr. McKinzy, you may step down.
15 MS. HESSENFLOW: I still have some more questions, then, about that.
16 COMMISSIONER KIMMINAU: On -- on the summary judgment?
17 MS. HESSENFLOW: Yes. Yes, Your Honor.
18 COMMISSIONER KIMMINAU: Let’s proceed.
19 MS. HESSENFLOW: Thank you.
21 Q. I’m going to hand you what’s been marked as Respondent’s Exhibit 40 and
22 ask you if you recognize that as the motion for summary judgment that you filed on
23 Saturday night.
24 A. I filed it on July -- today, but I served it on July 7, I believe.
25 COMMISSIONER KIMMINAU: You mean --
15
2 Q. July?
3 COMMISSIONER KIMMINAU: -- January?
4 MR. MCKINZY: January, I’m sorry.
5 MS. HESSENFLOW: Rephrase.
7 Q. Sir, is that your motion?
8 A. Yes, it is the motion that I prepared.
9 Q. And on pages 2 and 3 of Exhibit 40, that’s the actual motion?
10 A. This is, yes.
11 Q. And pages 4 through 17 are the exhibits that you attached and incorporated
12 into your motion as evidentiary support for your request; is that right?
14 Q. Can you turn to page 6?
15 MS. HESSENFLOW: Offer Respondent’s Exhibit 40, Your Honor.
16 COMMISSIONER KIMMINAU: Any objection, Mr. McKinzy?
17 MR. MCKINZY: No, Your Honor.
18 COMMISSIONER KIMMINAU: Exhibit 40 is received.
19 (AT THIS TIME RESPONDENT’S EXHIBIT 40 WAS RECEIVED IN
20 EVIDENCE AND MADE A PART OF THIS RECORD.)
22 Q. Will you turn to page 6 of that document, please? And what you attached as
23 Exhibit E is a copy of the administrative order in the old ’02 case from July 10, 2002;
24 is that correct?
16
1 Q. Third paragraph down under findings of fact, does it say, “On 7/1/2002,
2 Respondent and Petitioner were personally served”?
3 A. Yes, it does.
4 Q. And then after that, does it say that not only were you personally served, but
5 you have actually signed the order? Does it say that?
6 A. Not on this page, no, it doesn’t say that on page 6.
7 Q. On page 6, “Personally served under section with a notice and finding of
8 financial responsibility, and by their signatures below agree to this order”?
9 A. Yes, it states that we were personally served on September 1, 2002.
11 A. I was never present to be personally served by anyone in 2002.
12 Q. Can you turn to page 8? Is that your notarized signature on 6/28/02 on the
13 order before it ever even went to the Court?
14 A. Yes, that’s -- I signed a -- this sheet only, stating that I was down there,
15 acknowledging or wanting to enter into a voluntary child support order that my wife
16 and I had agreed to, and this was the order that I was agreeing to. It was a consent to
17 voluntary child support order. It was not an administrative order.
18 MS. HESSENFLOW: Ask to strike as nonresponsive.
19 COMMISSIONER KIMMINAU: Well, I think the answer has been made
20 and I think it is responsive. That’s overruled. Go ahead. Next question.
22 Q. So you stated that page 8 -- you came in and you signed this blank page?
23 A. Yes.
24 Q. I’m going to hand you what’s been now marked as Respondent’s Exhibit 4,
25 which is already in evidence. It was received by this Court during the hearing on
17
1 5/19/2017 (sic), so I don’t have to offer it into evidence. But do you recognize that
2 as your entry of appearance in this same administrative case signed again on a
3 separate day on a separate piece of paper?
4 A. It was signed on the same day. And, once again, it was under the impression
5 that my wife and I had reached a voluntary order.
6 MS. HESSENFLOW: Your Honor, nonresponsive. I didn’t ask him what his
7 opinion was. I asked if he signed this document under oath, entry of appearance.
8 COMMISSIONER KIMMINAU: That is nonresponsive. Just answer the
9 question.
10 MR. MCKINZY: Yes, I signed the same document on the same date that I
11 signed the signature page for the administrative order without provided -- being
12 provided the order.
14 Q. All right. Can you now turn to page 10 of your motion for summary
15 judgment exhibits? Do you see that?
16 A. Yes.
17 Q. You filed a series of cases in 2007 and 2008, also alleging in those matters
18 that you did not receive appropriate service; is that correct?
20 Q. And in paragraphs 1, 2, 3, and 7 of your Respondent’s Exhibit 10 attached to
21 your motion, do you raise the issues of not being served, not receiving a notice, not
22 receiving a copy of the order, not receiving the affidavit of mailing?
23 A. That is correct, and it was --
24 Q. And those are circled there?
25 A. That is -- no, they’re not circled. Not on mine, they are not.
18
1 Q. Paragraphs 1, 2, 3, and 7 address the same issues that you’re wanting to raise
2 in your summary judgment here, correct?
3 A. Yes, they’re -- they’re not circled, though, but --
4 Q. All right. Sorry. On page 11, paragraphs 8, 9, 10, 11, and 12 also deal with
5 affidavits of mailing, you not getting certified mail, you not wanting -- you not
6 receiving the correct process from the beginning and wanting the order set aside then;
7 is that correct?
9 Q. On page 12, paragraphs 15, 16, and 18 also deal with asking the Court to find
10 the order null and void because you did not receive due process and there was
11 improper service; is that correct?
12 A. Well, this -- this was not before the Court. This was submitted in the
13 administrative hearing that was held, I believe, in July 2007. I submitted this as an
14 exhibit, raising those same issues before the administrative hearing officer.
15 Q. And on page 13, that’s your signature and the date that you sent that off; is
16 that correct?
17 A. That is correct and notarized.
18 Q. And on page 15, you attach a copy of a statute where you’ve highlighted in
19 green that you believe this order is void because -- you’ve highlighted, “Service of
20 the notice and finding shall be made on the parent or other party in the manner
21 prescribed by service in the civil action by an authorized process server or by
22 certified mail.” You highlighted that?
23 A. Yes, I did.
24 Q. You realize that if you were served personally, signed an entry, signed the
25 order, signed the judgment, nobody has to send you certified mail of anything?
19
1 A. No, I did not receive order. I signed signature pages. I did not receive copies
2 of the orders on the days that I signed the signature page.
3 Q. Furthermore, did you raise the same issue in 2007 in a motion to set aside
4 administrative order, in 2007 in a motion filed in the ’02 case to set aside the order,
5 which you then filed a second and a third supplemental motions for administrative
6 review and before the Western District Court of Appeals and the Supreme Court, all
7 in 2007 and 2008 on these issues?
8 A. I may have. I don’t recall the individual actions, but, yes, I consistently have
9 pursued resolving the fact that I was not properly served with the establishing order
10 at my last known address.
11 MS. HESSENFLOW: Your Honor, at this time, I am going to ask the Court
12 to go ahead and overrule the motion for summary judgment. Number one, there is no
13 pleading upon which summary judgment and underlying pleading can be granted.
14 Number two, the evidence attached to his own exhibits incorporated in the summary
15 judgment show that he entered an appearance, show that he was personally served,
16 show that he signed the order, and the attachments to that as well as his own
17 testimony indicate that this matter has already been presented to this and other courts
18 and overturned. Therefore, even if it were a valid motion that had never been served,
19 it’s res judicata, collateral estoppel. There’s nothing here upon which you can base
20 legally or factually a grant of summary judgment in the Respondent’s favor --
21 Petitioner’s favor.
22 COMMISSIONER KIMMINAU: Mr. McKinzy, you may step down.
24 COMMISSIONER KIMMINAU: The Court’s going to find based on the
25 testimony and the arguments made that the Petitioner’s motion for summary
20
1 judgment is overruled, that there is no pending motion before the Court to address
2 notice, that it’s untimely filed in any event, that in addition there’s overwhelming
3 evidence of the Petitioner knowing about the administrative process by virtue of his
4 consent to the order and by virtue of his entry of appearance; and next, that this
5 matter has been litigated previously on multiple occasions, both in the State and
6 Appellate Courts. The matter has been dealt with, and we are ready to move on.
7 That motion is overruled.
8 The next motion is for default judgment, I believe; is that correct?
9 MR. MCKINZY: I believe so.
10 COMMISSIONER KIMMINAU: Or that’s one of the other motions
11 pending.
12 MS. HESSENFLOW: Yes, Your Honor, that’s still pending.
13 COMMISSIONER KIMMINAU: And that’s your motion, Mr. McKinzy --
15 COMMISSIONER KIMMINAU: -- is that correct?
17 COMMISSIONER KIMMINAU: And your argument for that is what?
18 MR. MCKINZY: Is that the -- upon service, the Court entered a -- granted
19 the Petitioner’s motion for sanctions regarding the then pending outstanding
20 discovery and propounded the Respondent to respond by May 1, and Respondent
21 failed to do so prior to having retained counsel and pursuant to the current Rules of
22 Civil Procedure 61.01(b), I believe, effective January 1, 2016, that the Court was
23 mandated to either sanction, dismiss, or grant the judgment based on the failure to
24 produce discovery after being given additional time to do so.
25 COMMISSIONER KIMMINAU: All right. Ms. Hessenflow?
21
1 MS. HESSENFLOW: Call the Respondent briefly for a few questions, Your
2 Honor.
3 COMMISSIONER KIMMINAU: All right. Mr. McKinzy?
4 MS. HESSENFLOW: No, the Respondent.
5 COMMISSIONER KIMMINAU: Oh, I’m sorry. Excuse me.
6 Ms. Gaston, is it?
7 MS. GASTON: Gaston.
8 COMMISSIONER KIMMINAU: Gaston. If you don’t mind, please raise
9 your right hand when you get to the witness chair. Raise your right hand, please.
10 (Witness sworn.)
11 COMMISSIONER KIMMINAU: All right. Please have a seat. And as I
12 asked Mr. McKinzy, please speak up so that we can create a good record.
13 THE WITNESS: Okay.
14 CARLETHA G A S T O N, called as a witness in behalf of the
17 Q. Would you state your name for the record, please?
18 A. Carletha R. Gaston.
19 Q. And you signed and reviewed our answer to Mr. McKinzy’s motion for a
20 default judgment; is that correct?
21 A. Yes.
22 Q. And in that motion in our response, we set forth when you actually received
23 the admissions, that they weren’t in the proper format, that you did your best to
24 respond to what you received; is that correct?
25 A. Yes.
22
1 Q. And, further, we also asked the Court to set aside the previous scheduling
2 order and to set up a new schedule of discovery, require everyone to respond to
3 everything that was pending that had been properly propounded and to allow
4 everybody an opportunity to fix their discovery or ask anything else that they wanted
5 to; is that correct?
6 A. That’s correct.
7 Q. And this Court entered that scheduling order on May 26, 2016, thereby
8 setting aside the discovery order upon which Mr. McKinzy bases his request for
9 default and for admissions; is that correct?
11 Q. However, by the time that Court had issued that judgment, you had already
12 responded to the admissions in full; is that correct?
13 A. Correct.
14 Q. And I hand you now what’s been marked as Respondent’s Exhibit 78 and ask
15 you if you recognize that as a copy of an email transmission from me, your attorney,
16 to Mr. McKinzy.
17 A. Yes.
18 Q. And the Court gave us until December -- I’m sorry, until June 20, 2016 to
19 respond to all outstanding discovery; is that correct?
21 MS. HESSENFLOW: And offer Respondent’s Exhibit 78.
23 MR. MCKINZY: No, I do not.
24 COMMISSIONER KIMMINAU: All right. Respondent’s 78 will be
25 received.
23
4 Q. Does the first page of that document show that you sent your one
5 modification of income and expense, interrogatories, request -- response to his
6 second interrogatories, response to his second request for an income and expense,
7 and the certificates accompanying?
8 A. Correct.
9 Q. Does the second page of that document show that you responded to all three
10 of his production of documents requests and the appropriate certificates
11 accompanying each of those?
12 A. Correct.
13 Q. Does the last page of the document show that you provided three income and
14 expense statements that covered different times of the year, an asset and debt
15 statement, as well as responses to the interrogatories and other documents provided?
17 Q. Did you, on or before the date the Judge set as the final deadline, June 20,
18 2016, respond to all 11 of the discovery requests propounded to you by Mr. McKinzy
19 in this case?
20 A. It was done.
21 MS. HESSENFLOW: I have no further questions.
22 COMMISSIONER KIMMINAU: Any further argument, Mr. McKinzy, on
23 the motion for default?
24 MR. MCKINZY: I stand still that based on the rules in -- in effect as of
25 January 1, 2016, that the Court, after giving Respondent additional time, was
24
1 required by Rules of Civil Procedure to either dismiss, grant default, or enter a
2 sanction after additional time, that it was not a discretionary matter at that time, and
3 the Court had entered an order extending the discovery time to May 1, upon which
4 the Respondent was to respond to all outstanding discovery.
5 COMMISSIONER KIMMINAU: All right. So the Court’s going to overrule
6 the motion for default judgment based on the fact that default is the most severe of
7 remedies, that it’s not called for in this circumstance, that there was additional time
8 granted to both parties, including the Petitioner, to complete the discovery requested.
9 It appears as though that discovery has been complied with. There are other
10 sanctions available if the Court found that there was a violation that needs to be
11 addressed regarding the prior order. Ms. Gaston was not represented at that time, and
12 as soon as Ms. Hessenflow got in the case, the -- the new order was entered with
13 regard to the discovery and has been complied with. As a result, the motion for
14 default judgment, a severe remedy, is -- is overruled.
15 We also have -- you may step down, ma’am.
16 MS. GASTON: Sorry.
17 COMMISSIONER KIMMINAU: Pending before we take further evidence a
18 motion to have admissions deemed admitted, I believe; is that correct?
19 MS. HESSENFLOW: Yes, that’s still pending, Your Honor.
20 COMMISSIONER KIMMINAU: Mr. McKinzy --
22 COMMISSIONER KIMMINAU: -- do you want to address that motion,
23 please?
24 MR. MCKINZY: Okay. It was once again based on what the Plaintiff or
25 Petitioner believed was the current Rules of Civil Procedure; that if responses had not
25
1 been responded to or objected to by within the 30 days of being served, that they
2 were being admitted. The Respondent in this case failed to do so, and therefore,
3 Petitioner believed that the request for admission were deemed admitted based on the
4 Rules of Civil Procedure.
5 COMMISSIONER KIMMINAU: Okay. Ms. Hessenflow?
6 MS. HESSENFLOW: Call the Respondent.
7 COMMISSIONER KIMMINAU: Ma’am, I’m sorry. Get back on the
8 witness chair, and remember you’re still under oath, please.
9 MS. HESSENFLOW: Your Honor, while she approaches the witness stand,
10 in our response we set forth that the admissions propounded upon the Respondent
11 prior to my entry in the case were in the improper format. All five questions related
12 to matters that have been previously decided in other litigation and were not pending
13 before the Court.
17 Q. And, Ms. Gaston, I’m going to hand you what’s been marked as
18 Respondent’s Exhibit 75 and ask you if you recognize that document.
19 A. Yes, I do.
20 Q. And is that an email transmission showing that we sent our amended
21 responses to Mr. McKinzy’s admissions and a certificate of service on May 18,
22 2016?
23 A. Yes.
24 Q. So before the Court even withdrew its prior sanctions discovery order and
25 timelines on 5/26/16 and granted you until 6/20/16 to respond to those admissions,
26
1 you had already responded to this particular set a week before we even went to court
2 that date?
3 A. Yes, I did.
4 MS. HESSENFLOW: Offer Respondent’s Exhibit 75. At this time, Your
5 Honor, I’d ask for an order denying the Petitioner’s request that the admissions be
6 deemed admitted. Number one, he’s basing that on an order that was later set aside
7 and a new scheduling order was put in place, which is under the purview of the Court
8 to guide and govern the timing in exchange of discovery, and further, with regard to
9 the particular request for admissions, they were responded to before the deadlines
10 even took place.
11 COMMISSIONER KIMMINAU: Any objection to me receiving Exhibit
12 No. 75, Mr. McKinzy?
13 MR. MCKINZY: No objection.
14 COMMISSIONER KIMMINAU: Respondent’s 75 will be received.
17 COMMISSIONER KIMMINAU: Did I hear you say, Ms. Hessenflow, that
18 the requested -- the admissions that were propounded upon your client have been
19 previously -- were referencing matters that had previously been dealt with?
20 MS. HESSENFLOW: Yes, she responded to them in a pro se matter within
21 the original timeframe. He filed a -- a motion objecting to the completeness and
22 specificity of her responses. She then, after she hired me, filed amended responses to
23 the admissions on 5/18/16, which was within the timeframe of the original discovery
24 order before you set forth a new scheduling order on 5/26 and certainly before the
25 deadline on 6/20/16.
27
1 COMMISSIONER KIMMINAU: But the -- the form of the admissions you
2 said is improper.
3 MS. HESSENFLOW: It was, but we responded to them anyway, to give him
4 the information he sought.
5 COMMISSIONER KIMMINAU: What was improper about the form, is
6 what I’m asking.
7 MS. HESSENFLOW: It wasn’t on a disk, they related to matters that were
8 not pending before the Court, he didn’t give her copies -- an electronic copy or extra
9 paper copies that she could work from; further, they asked for matters related to other
10 individuals besides herself, adult children who would have had to have provided this
11 information, but she gave him whatever information she could in response to those
12 documents.
13 COMMISSIONER KIMMINAU: All right. Mr. McKinzy, I understand that
14 when you’re pro se and you’re trying to do this without the benefit of legal counsel,
15 that sometimes rules can be confusing or overwhelming, even. But in this case,
16 based on the form of the request, which has to be in particular form and was not put
17 in that form, and based on the fact that these matters have previously been dealt with,
18 and the timeline involved regarding when these admissions were responded to, the
19 Court’s going to overrule your motion to deem the requested admissions being
20 admitted.
21 What, besides the motion in limine, is left to deal with before we take
22 evidence on the contested motion?
23 MS. HESSENFLOW: The motion to exclude previously litigated topics
24 pursuant to res judicata and collateral estoppel.
25 COMMISSIONER KIMMINAU: Is that your motion?
28
1 MS. HESSENFLOW: It is in my response to his pleading before my counter-
2 motions to --
3 COMMISSIONER KIMMINAU: Which pleading?
4 MS. HESSENFLOW: Our answer to his initial motion. It’s in our answer
5 and counter-petition.
6 COMMISSIONER KIMMINAU: That was filed on June 20?
7 MS. HESSENFLOW: Yes, Your Honor. And we respond to this motion.
8 The first part of our responsive pleading, then, counter asks that these be dismissed
9 for -- certain matters, all but three, be dismissed for res judicata and collateral
10 estoppel. And, of course, we ask for affirmative relief, which is to -- for attorney’s
11 fees to declare interest to set -- reduce the amounts owed to a set judgment in Counts
12 II and III.
13 COMMISSIONER KIMMINAU: You have filed as of June 20 a cross-
14 motion and incorporated suggestions to dismiss all requests for affirmative relief set
15 forth in Mr. McKinzy’s motion to modify and motion for declaratory judgment, with
16 the exception of Request No. 6 and 9. What are those requests?
17 MS. HESSENFLOW: Request No. 6 and 9 -- Request No. 6 is to terminate
18 his maintenance retroactive to the date of the filing of his motion to modify and
19 motion for declaratory judgment. The other one is his request to find that he has paid
20 all maintenance in full and has no arrearages for maintenance owing.
21 COMMISSIONER KIMMINAU: Because the Petitioner’s emancipation
22 related requests are barred by the doctrines of res judicata and collateral estoppel.
23 And, Mr. McKinzy, you filed a response to that cross-motion?
24 MR. MCKINZY: I believe I did.
25 COMMISSIONER KIMMINAU: Let me take a look here. Looks like --
29
1 MS. HESSENFLOW: He filed, I believe, suggestions in opposition thereto.
2 COMMISSIONER KIMMINAU: Yes, they were filed on July 5, it appears.
3 Does that sound right, Mr. McKinzy?
4 MR. MCKINZY: Yes, I believe.
5 COMMISSIONER KIMMINAU: All right. I ask you what is it,
6 Ms. Hessenflow, that remains according to your motion. What is it that you were
7 asked not to be dealt with based on his prior pleadings?
8 MS. HESSENFLOW: Yes, Your Honor.
9 COMMISSIONER KIMMINAU: Let’s go through 1 through 5 and then 7, 8.
10 MS. HESSENFLOW: Certainly.
11 COMMISSIONER KIMMINAU: And then I’ll have you respond,
12 Mr. McKinzy.
14 MS. HESSENFLOW: Your Honor, on the third page of his motion to
15 modify, which is in the file --
16 COMMISSIONER KIMMINAU: We’re talking about the original motion?
17 MS. HESSENFLOW: His motion, yes, sir. And that was -- I actually offered
18 a copy of that into evidence for ease of reference during the hearing on 5/16, so it’s in
19 your notebook already in evidence as Respondent’s Exhibit 16.
20 COMMISSIONER KIMMINAU: I also have a copy of it right here.
21 MS. HESSENFLOW: On the third page, he -- he sets forth and summarizes
22 his requests for relief. No. 1 is emancipation of the children retroactive to the date of
23 majority of each and every child. That has been previously litigated four times and
24 reviewed by two Courts of Appeals.
25 COMMISSIONER KIMMINAU: Just a second.
30
1 Mr. McKinzy, do you -- is that correct, that this has previously been dealt
2 with by prior courts --
3 MR. MCKINZY: I don’t --
4 COMMISSIONER KIMMINAU: -- including Courts of Appeals?
5 MR. MCKINZY: No, I don’t believe the emancipation of any of the children
6 has been dealt with previously by any courts of appeals.
7 COMMISSIONER KIMMINAU: There’s been no prior order? Well, what
8 about state courts?
9 MR. MCKINZY: No, not regarding -- I have not sought emancipation of any
10 of the children.
11 COMMISSIONER KIMMINAU: There’s been no orders emancipating the
12 children at any time?
13 MR. MCKINZY: Not that I’m aware of, no.
15 MS. HESSENFLOW: Why don’t we narrow down the list? I have all the
16 exhibits to put in, in evidence in support of my motion. So one is we dispute one and
17 we need some evidence?
19 MS. HESSENFLOW: All right. No. 2, termination of Petitioner’s child
20 support obligation as of the dates of each and every child born of the marriage, same
21 thing as 1, just reworded.
22 COMMISSIONER KIMMINAU: So that needs to be developed.
23 MS. HESSENFLOW: Correct.
24 No. 3 is a declaration that he satisfied all of his child support obligations.
25 We’ve dealt with that preliminarily during the hearing on 5/19/2016.
31
1 COMMISSIONER KIMMINAU: That was a very uncertain and vague
2 amount, though. We put a range of potential arrearage, but that’s still to be
3 developed here today, correct?
4 MS. HESSENFLOW: Yes.
5 COMMISSIONER KIMMINAU: All right. So that is still in play.
6 MS. HESSENFLOW: And is part of the -- our counter-motion what’s owed.
7 COMMISSIONER KIMMINAU: Exactly.
8 MS. HESSENFLOW: 4 is also under that category.
9 COMMISSIONER KIMMINAU: Yes.
10 MS. HESSENFLOW: 5 then would also be under that category.
12 MS. HESSENFLOW: And 7 would be under that category.
13 COMMISSIONER KIMMINAU: Correct.
14 MS. HESSENFLOW: So it looks like, since we’re going to revisit the
15 amount owed, if any, and what that is --
16 COMMISSIONER KIMMINAU: Well, the --
17 MS. HESSENFLOW: -- then I would restrict my motion to revisiting the
18 emancipation dates and termination dates for the support obligations for the children,
19 as they have been previously litigated, and I’m prepared to put on evidence with
20 regard to my request to --
22 MS. HESSENFLOW: -- exclude those issues.
23 COMMISSIONER KIMMINAU: So that motion’s under advisement
24 pending the receipt of that evidence. You also have in your answer cross-motion and
25 incorporated suggestions to determine the amount of child support and maintenance
32
1 arrearages -- we’ve covered that -- to assess and enter judgment for all statutory
2 interest accumulated, and to establish a payment schedule regarding those arrearages;
3 is that correct?
5 COMMISSIONER KIMMINAU: And a cross-motion and incorporated
6 suggestions in support of a request for judgment against Mr. McKinzy for your
7 attorney fees and costs; is that correct?
9 COMMISSIONER KIMMINAU: All right. So the essence of that pleading
10 is that we will hear further evidence regarding prior orders entered by the Court, and
11 then I can enter judgment accordingly based on whatever I find to be the most
12 credible evidence on that score. What other motions, then, besides the motion in
13 limine, remain pending before we get started on the evidence?
14 MS. HESSENFLOW: None to my knowledge.
15 COMMISSIONER KIMMINAU: How about you, Mr. McKinzy?
16 MR. MCKINZY: None that I’m aware of.
17 COMMISSIONER KIMMINAU: Any other motions?
18 MR. MCKINZY: Not that I’m aware of, Your Honor.
19 COMMISSIONER KIMMINAU: Okay. So the motion in limine filed by
20 Ms. Hessenflow recently -- when was it, today or Saturday or sometime -- indicates
21 that you did not receive the requested discovery that you believe you’re entitled to,
22 and as a result, you’re asking that the Court not permit Mr. McKinzy to provide
23 evidence of his income for the years 2013, ’14, and ’15, I believe; is that correct?
24 MS. HESSENFLOW: Not exactly, Your Honor. I -- he did not provide the
25 discovery.
33
1 COMMISSIONER KIMMINAU: And that discovery was in the form of tax
2 returns?
3 MS. HESSENFLOW: Tax returns, that’s correct, Your Honor. However, he
4 did provide some pay stubs, and the motion simply asks that he not be able to testify
5 that his income is different from the limited information that he provided. We’ve
6 based our case on what he provided rather than going around and around again about
7 the discovery, trying to get the taxes, wasting more time, wasting more money. We
8 had an updated pay stub. I know where he’s working now. I know what he’s earning
9 now. But because he did not provide the other documents, we don’t want to be in a
10 position where he then comes in and testifies and says, “Well, I’m only earning this
11 now,” or, “Last year, I only earned that,” or, “I didn’t really earn that.”
12 COMMISSIONER KIMMINAU: I get it.
13 Mr. McKinzy, your --
14 MS. HESSENFLOW: No surprises.
15 COMMISSIONER KIMMINAU: -- your response? Did you provide the tax
16 returns requested?
17 MR. MCKINZY: I provided the tax return, I believe, in -- in open court prior
18 to Respondent retaining counsel. It was the date that we appeared here and the case
19 was continued, and at that time, I provided discovery to her.
20 COMMISSIONER KIMMINAU: Well, I don’t know if you did or not.
21 There’s nothing in my file or nothing on Case.net to reflect that there was an
22 exchange of discovery prior to -- or at that time.
23 MR. MCKINZY: In response, I did -- on the responses, I did indicate that I
24 provided the discovery requested in open court.
25 COMMISSIONER KIMMINAU: Did you file a response to the request for
34
1 discovery, indicating that it’s already been completed?
2 MR. MCKINZY: Yes, that -- that was the responses that the discovery
3 request that was provided to Respondent in open court.
4 COMMISSIONER KIMMINAU: Well, why wasn’t it -- if -- if there’s a
5 question about it or if she said she didn’t get it and there’s no other evidence of it,
6 why didn’t you provide it again, make copies and give it to her?
7 MR. MCKINZY: I didn’t know that I would be required to produce --
8 COMMISSIONER KIMMINAU: Well --
9 MR. MCKINZY: -- discovery twice.
10 COMMISSIONER KIMMINAU: -- it would eliminate the argument,
11 wouldn’t it?
12 MR. MCKINZY: Yes, it would.
13 MS. HESSENFLOW: Your Honor, we were given an opportunity to re
14 request the discovery pursuant to your order of 5/26/2016. My client claims she did
15 not receive them. I don’t care whether she did or not. I asked for three things in
16 discovery -- copies of his tax returns for the past three years, copies of pay stubs and
17 the last pay stub from last year, and pension documents. That’s all I asked him for.
18 COMMISSIONER KIMMINAU: Well, maybe the motion’s even -- we’ll
19 see what -- what -- are you contending that what you’re currently earning,
20 Mr. McKinzy, is different, more or less, than what you earned in ’13 to ’15 -- 2013 to
21 ’15? Or is it at or near the same amount?
22 MR. MCKINZY: I believe it’s at or near.
24 MR. MCKINZY: Probably a little bit more, unfortunately.
25 COMMISSIONER KIMMINAU: So it may be moot if he’s not arguing that
35
1 his income currently is sufficiently different from prior years, correct?
2 MR. MCKINZY: Prior years to ’15 -- 2015? Since --
3 COMMISSIONER KIMMINAU: ’13, ’14, and ’15 specifically is what’s
4 indicated in the motion in limine.
5 MR. MCKINZY: Yes, ’13 and ’14, I -- my income has increased
6 substantially since 2015.
7 COMMISSIONER KIMMINAU: Okay.
8 MR. MCKINZY: Since I’ve started working at Hillshire.
10 MR. MCKINZY: But from 2015 forward, it’s been consistent.
11 COMMISSIONER KIMMINAU: Well, let’s -- let’s see how the evidence
12 develops, and at that point, you can make any objections you deem appropriate,
13 either side, regarding what the evidence is. But if -- if the tax returns have been
14 requested, which they have, and you’ve not responded to it since we established the
15 new scheduling order, then if you’re going to testify that your income currently in
16 particular is less than what you were earning or you were earning more in previous
17 years as opposed to now, then I’m going to be very skittish about letting that -- that
18 testimony to come in for your failure to provide the requested discovery.
20 COMMISSIONER KIMMINAU: All right. Anything further? Because we
21 need to get started on this if we hope to conclude it today. Any other motions
22 pending that either one of you are aware of --
23 MR. MCKINZY: Not that I’m aware of.
24 COMMISSIONER KIMMINAU: -- before we take the evidence. Pardon
25 me?
36
3 Ms. Hessenflow?
4 MS. HESSENFLOW: No.
5 COMMISSIONER KIMMINAU: Are we ready to begin?
7 COMMISSIONER KIMMINAU: Mr. McKinzy, you are the Movant.
9 COMMISSIONER KIMMINAU: Ma’am, you may step down.
10 MR. MCKINZY: I call -- all right. You’re going to be the witness, so just
11 keep your seat. And please remember you’re under oath, all right?
12 THE WITNESS: Yes, sir.
14 PETITIONER, being duly sworn, testified as follows:
15 DIRECT EXAMINATION BY MR. MCKINZY:
16 Q. Could you state your name for the record, please, Carletha?
17 A. Carletha R. Gaston.
18 Q. Do you have any -- have you been previously married? Have you -- are you
19 currently married?
20 A. No.
21 Q. Okay.
22 COMMISSIONER KIMMINAU: I’m sorry, ma’am. You’re going to have
23 to make verbal acknowledgements of your answer.
24 THE WITNESS: No.
25 COMMISSIONER KIMMINAU: Okay. Thank you.
37
1 THE WITNESS: Thank you.
2 BY MR. MCKINZY:
3 Q. Do you have current -- any children?
4 A. I have four.
5 Q. Could you state their names and their birth dates?
6 A. Barbara Jean McKinzy, 1/6/86; Deon Mikale (phonetic spelling) McKinzy,
7 Deron Terrell (phonetic spelling) McKinzy, 6/8/88 -- they are twins -- and Michael
8 E. -- Michael Eugene McKinzy, Jr., 10/16/89.
9 Q. Are any -- any of the children currently in college or have any attended
10 college?
11 A. Deon -- Barbara J. McKinzy, not at this time, but Deon --
12 MS. HESSENFLOW: Your Honor, at this point, I’m going to object to
13 revisiting the issues of emancipation dates of all four of the children. They have all
14 been emancipated. It has been litigated. This is the purpose of my motion -- my
15 motion to dismiss out those two. We have spent an inordinate amount of time
16 discussing that in May, and it is simply not before the Court. The children are
17 emancipated, so I’m going to renew my motion at this time. I don’t know if perhaps
18 we would like to take the evidence on that issue of res judicata before we spend all
19 day talking about an issue that the Court can’t decide.
20 COMMISSIONER KIMMINAU: Are -- are you contending that there’s
21 never been an order by any court, including this one, that there’s been an
22 emancipation of your children?
23 MR. MCKINZY: I’m concluding that I’m not aware of any court hearing
24 order of emancipation for any of the children.
25 COMMISSIONER KIMMINAU: Let’s get to the issue of emancipation and
38
1 nip that in the bud immediately and deal with that, all right?
3 COMMISSIONER KIMMINAU: So, Ms. Hessenflow, if you’ve got
4 something you can put on that would streamline this in any appreciable degree, I’d --
5 that would be beneficial to us all, I think.
6 MS. HESSENFLOW: Will do.
7 If you could step down for a moment, I would like to inquire of the Petitioner
8 as to his knowledge and participation in six previous cases concerning this issue.
9 COMMISSIONER KIMMINAU: All right. Mr. McKinzy, again, please
10 remember you’re still under oath, all right?
14 Q. Sir, earlier, we discussed your new motion for summary judgment, just a little
15 while ago; do you recall that?
16 A. Yes.
17 Q. And we put that in evidence as Petitioner’s Exhibit 40. I’m going to hand
18 you your copy back. All right. And we talked about some exhibits and pleadings
19 that you filed in 2006 and 2007 to attempt to address some issues that you took
20 exception to with regard to the underlying administrative proceedings. Do you recall
21 us talking about that service, did you get the affidavit, was it certified mail?
22 A. Yes.
23 Q. All right. Can you turn to page 10? And is that the same document that you
24 attached as an exhibit that we just discussed about paragraphs 1, 2, and 7, several
25 paragraphs on page 11 that related to service that you rose at that time?
39
1 A. Yes, before administrative.
2 Q. And you ended up filing petitions for judicial review in front of Judge
3 Campbell?
4 A. I filed a judicial review. I’m not sure who it was before.
5 Q. Based upon this litigation that you instigated concerning the underlying
6 administrative order?
7 A. It was -- it was a modification request that I was involved in, yes.
8 Q. And when the Judge did not grant your motion for judicial review and to set
9 this aside, you filed a writ against him, and you filed an appeal at the Western
10 District Court of Appeals, correct?
11 A. Yes, I believe I did.
12 Q. And these requests that you raised first in 2006 and ‘7 were not just limited to
13 service, were they?
14 A. They were limited to the fact that I -- yeah, I was denied due process of law.
15 That was my main point raised, that I was denied due process of law.
16 Q. Can you turn to page 12 of your own pleading?
17 COMMISSIONER KIMMINAU: Are we -- are we looking at the motion for
18 summary judgment?
21 MS. HESSENFLOW: Respondent’s Exhibit 40, Your Honor.
23 THE WITNESS: Yes.
25 Q. Paragraph 20 -- I’m sorry, paragraph 22, did you argue that your daughter
40
1 was emancipated and should have been retroactively emancipated to -- when she
2 turned 18, in paragraph 22?
3 A. Yes, that is --
4 Q. Paragraph 23, emancipation arguments, request for retroactive emancipation
5 with regard to Deron?
6 A. Yes.
7 Q. Paragraph 24, emancipation arguments, request for retroactive -- retroactive
8 emancipation of his twin brother, Deon?
9 A. Yes.
10 Q. And at that time, you did not request emancipation of your youngest son,
11 Michael, because he was still in high school, correct?
12 A. I believe he was under 18.
13 Q. So the emancipation of your three older children was addressed in the 2007
14 motions, the petition for judicial review, the Western District Court of Appeals
15 appeal, and the writ you filed against Commissioner Campbell?
16 A. It was not a issue that I raised. There was a affidavit that was included.
17 There was a affidavit --
18 Q. This is your motion that you filed raising the issues.
19 A. There was an affidavit that was included as an exhibit before the
20 administrative hearing, Judge.
21 Q. Okay.
22 A. But it was not -- I was raising the issue of due process.
23 Q. We can get to that in a minute.
24 A. Okay.
25 Q. Did you also raise the issue of retroactive emancipation of the three older
41
1 children in your response to the motion to modify filed by the State of Missouri,
2 wherein they reduced your child support administratively to $599 to reflect support
3 for your youngest child only?
4 A. Could you repeat that question again?
5 Q. I’ll ask it a different way. I’m going to hand you now what’s been marked as
6 Respondent’s Exhibit 72 and ask you if you recognize that as a copy of the docket
7 entries for the divorce case, the underlying 02FC200809 divorce case.
8 A. I don’t recognize it, but I’m familiar with some of the -- the wording in it.
9 MS. HESSENFLOW: I offer Respondent’s Exhibit 72, which is
10 automatically admissible as a automated record of the court regarding the case.
11 COMMISSIONER KIMMINAU: 72 is admitted.
15 Q. If you could turn, please, to page 5 of Exhibit 72.
16 A. Okay.
17 Q. And at the top, on 11/25/02, did you file a motion for rehearing with regard to
18 the divorce decree that incorporated the administrative child support amount?
19 A. In ’02?
20 Q. Up at the top, on 11/25/02, motion filed.
21 A. Oh, okay.
22 Q. Petitioner’s motion for rehearing filed by Michael E. McKinzy, Senior. You
23 filed that, right?
24 A. Yes, I did file a motion for rehearing.
25 Q. And one of the issues you raised was the fact that the administrative child
42
1 support order was incorporated into the dissolution decree?
2 A. No, the issue I raised -- there was no issues. I was just requesting to be given
3 a rehearing. I was -- I didn’t put forth any reason. I thought I automatically was
4 entitled to a motion for rehearing if it was done within the 15 days. I just thought it
5 was administerial process. And it was eventually overruled, but I didn’t put forth any
6 issues. It was just that I felt -- after I found out that the marital home was sold, that I
7 wanted to bring that to the Court’s attention that the -- and that’s the whole thing is
8 that -- that I wanted to bring to the Court’s attention is that the children were not
9 living in the marital home. It had been sold a month after the divorce or was in the
10 process of being sold.
11 COMMISSIONER KIMMINAU: Do we have --
14 COMMISSIONER KIMMINAU: Just a second. Do -- do we have orders
15 emancipating any of the children --
17 COMMISSIONER KIMMINAU: -- from any court?
19 COMMISSIONER KIMMINAU: Can we just get to that and -- and
20 determine when that was done? Wouldn’t that solve the issue? What am I missing
21 here? Something in the -- in between we need to cover?
22 MS. HESSENFLOW: I was trying to establish that it had been filed and filed
23 and filed and filed, but you’re right, just give you the thing and call it a day.
24 COMMISSIONER KIMMINAU: I think I would prefer that. I understand --
25 MS. HESSENFLOW: I think I would if I were you too, Your Honor.
43
1 COMMISSIONER KIMMINAU: -- I think I understand that there’s been
2 much litigation throughout the course of this, but for today’s purposes, to streamline
3 it, if we could get to the issue of the emancipation and the orders that were entered,
4 that would allow us to move forward, I think.
5 MS. HESSENFLOW: Your Honor, I don’t have to ask anyone any
6 questions. Contained in the Court’s notebook is Respondent’s Exhibit 22. That is
7 the modification decision and order of the administrative hearing section. It’s
8 already in evidence in this matter and was offered on 5/19/2016, received into
9 evidence. I’m going to hand everybody a copy so they can follow along. On page 3
10 of that document, highlighted in blue, finding No. 3, “Father no longer owes a duty
11 of support for children Barbara, Deron, and Deon.” Turning over then to the
12 determinations -- one, two, three, four paragraphs down, highlighted in blue, “This
13 decision was calculated considering only Father’s support for the child Michael,” the
14 one attending high school. Below that, first line in the next paragraph, “Presumed
15 support for Michael only is 599.” The following page, second half of first paragraph,
16 “It is also determined that Father’s current support obligation ceasing for three of the
17 four children constitutes a continuing and substantial change, and under the order,
18 Father no longer owes any support for the three olders, and the only one continuing
19 to get support is the younger one, 599.” That order emancipated the three older
20 children and reestablished support for the fourth child only. And also already
21 received into evidence on 5/19/2016, Respondent’s Exhibit 23, which is the
22 Honorable Patrick W. Campbell’s findings and recommendations affirming that
23 administrative decision emancipating the three oldest children and reestablishing a
24 child support amount for the youngest child only.
44
1 Mr. McKinzy, does that refresh your recollection on the emancipation of the
2 three older children?
3 MR. MCKINZY: It doesn’t refresh my recollection, but it brings to question
4 the dates or -- that are -- is -- the order -- is the order saying that the -- the children
5 are emancipated as of their 18th birthday? It --
6 COMMISSIONER KIMMINAU: Are you saying you’ve never seen copies
7 of the administrative decision modifying your judgment to 599?
8 MR. MCKINZY: No, I’ve seen the nunc tunc --
9 COMMISSIONER KIMMINAU: Nunc pro tunc.
10 MR. MCKINZY: Okay. Okay.
11 COMMISSIONER KIMMINAU: Which is the same thing with the -- with
12 the emancipation language in the --
13 MR. MCKINZY: No.
14 COMMISSIONER KIMMINAU: -- for Michael.
15 MR. MCKINZY: I got --
16 COMMISSIONER KIMMINAU: You’ve never seen that?
17 MR. MCKINZY: No, I got something from the hearing -- hearing officer, the
18 legal service.
19 COMMISSIONER KIMMINAU: You never received Judge -- Judge
20 Campbell’s decision affirming the administrative decision in January of 2008?
21 MR. MCKINZY: I got something, yeah, in January 2008.
22 COMMISSIONER KIMMINAU: So then you are aware that these three
23 older children were emancipated retroactive to those dates.
24 MR. MCKINZY: To which date?
25 COMMISSIONER KIMMINAU: Well, it looks like December 12, 2007 for
45
1 the older three.
2 Is that correct, Ms. Hessenflow?
4 MR. MCKINZY: So they’re emancipated after their 18th birthday; is -- is
5 that what that’s saying?
6 COMMISSIONER KIMMINAU: I -- I -- yeah, I’m going by the prior
7 judgment of the Court, which appears to be December 12, 2007 for your three older
8 children. Now, what about Michael, Junior? Is he -- is he emancipated?
9 MR. MCKINZY: He --
12 MS. HESSENFLOW: I have separate paperwork for him.
13 COMMISSIONER KIMMINAU: Well, let’s -- let’s proceed with that one.
16 ask you if you recognize that as a copy of your own --
17 MS. HESSENFLOW: It should be in your book.
20 Q. Motion to terminate child support in the amount of 599 for the youngest son,
21 Michael.
22 A. Yes.
23 Q. And you filed, which you can, pro se an affidavit for termination of child
24 support, asking that he be emancipated, correct?
25 A. As of his 18th birthday, yes.
46
1 Q. You didn’t ask for his 18th birthday, did you?
2 A. Yes, I thought I did.
3 Q. Can you show me on that motion where you asked that it be retroactive to his
4 18th birthday rather than effective the date that you filed the motion?
5 A. My intention was to do it to his 18th birthday. But it was subsequently -- he
6 was subsequently emancipated as of his 18th birthday, because the Respondent filed
7 an affidavit emancipating him on his 18th birthday.
8 Q. So this asks for him to be emancipated.
9 A. As of his 18th -- well, I was seeking the 18th birthday, because -- yes.
10 Q. But it doesn’t say that?
11 A. That was my intention.
12 Q. Does it say that?
13 A. No, it does not say that.
14 MS. HESSENFLOW: Offer Respondent’s Exhibit 54.
15 COMMISSIONER KIMMINAU: 54 is received.
19 Q. I’m going to hand you now what’s been marked Respondent’s Exhibit 79 and
20 ask if you recognize that as those affidavits that she executed that you were just
21 talking about.
22 A. Yes.
47
3 Q. So after she got served with your Respondent’s Exhibit 54, saying, “Hey, my
4 kid’s like over 21 and I’m still paying support,” she sent an answer that says, “Yeah,
5 he is, and you shouldn’t be,” correct?
6 A. That is correct with regard to him. But also the other children were not
7 emancipated as of their 18th birthday. That was the whole -- everyone that I’m
8 aware of, I’ve never been --
9 MS. HESSENFLOW: Hey, I’m going to ask to strike as nonresponsive. I’m
10 trying to ask this --
11 COMMISSIONER KIMMINAU: So stricken. Just keep your --
13 COMMISSIONER KIMMINAU: -- responses confined to the question,
14 Mr. McKinzy.
17 Q. Respondent’s Exhibit 54 relates to Michael?
18 A. Yes, that is correct.
19 Q. Just Michael. You say, “Emancipate him,” yes?
20 A. Yes.
21 Q. She gets served with that, correct?
22 A. Not that I’m aware of. They sent it back to me, saying that it was not
23 properly filed.
24 Q. On the first page of Respondent’s Exhibit 79, does she acknowledge
25 receiving your affidavit and says, “Yeah, I agree he should be emancipated”?
48
1 A. She does not acknowledge it, but she said she agree.
2 Q. Second page, does she do her own affidavit of termination of child support
3 and modification, now asking on her behalf that the child be emancipated?
4 A. Yes.
5 Q. Are the last two -- second to the last two pages a letter from her that she sent
6 along with this that says, “Hey, he graduated from high school in May of 2009. You
7 sent me a questionnaire. I sent it back. He should have been emancipated in May of
8 2009. Please emancipate him retroactive to the month he graduated from high
9 school”?
10 A. That would have not been his 18th birthday, but that’s the -- what the letter I
11 guess purports to say.
12 Q. Did your son graduate from high school in May of 2009?
13 A. He was 18, 2007.
14 Q. But he was graduated --
15 A. Yeah.
16 COMMISSIONER KIMMINAU: The question was when did he graduate.
17 THE WITNESS: 2009.
19 Q. And she says, “Hey, back out all that child support from May of 2009 up
20 until you stopped taking the 599 for him,” which they had already done on the
21 records at this point, correct?
22 A. Yes.
23 Q. And is the last page of that document -- just a minute -- okay. But nobody
24 had filed for retroactive emancipation. You’ve said emancipate him. She filed this
25 little letter. Nobody actually did what was necessary to make that happen, correct?
49
1 A. I’m not sure. I thought once it was filed, it was -- it was self-activating --
2 effective.
3 Q. But it wasn’t. They didn’t take any money off. They just emancipated him,
4 correct?
6 Q. So she then -- I’m going to hand you Respondent’s Exhibit 13, which is
7 already in evidence -- filed an affidavit of credit, giving you credit for $10,772, the
8 support that shows -- not that you paid, but that still shows as an arrearage between
9 May of 2009 and the date they stopped clicking away 559 a month for your son?
10 A. Right.
11 Q. So, effectively, he was retroactively emancipated by affidavit, by agreement,
12 and she’s already given you a credit to make up the difference?
13 A. No, she did not give me a full credit, because she emancipated him as of the
14 18th birthday, which would have been in 2007.
15 COMMISSIONER KIMMINAU: Mr. -- Mr. -- I’m confused, Mr. McKinzy,
16 by your reference to 18th birthday. The law in the state of Missouri does not require
17 emancipation on the 18th birthday. It requires it after graduation from high school.
18 THE WITNESS: Right. Well, she filed an affidavit, stating his emancipation
19 of his 18th birthday with the Court. That was the affidavit she filed, emancipating
20 him as of his 18th birthday.
22 Q. Long story short, your oldest son is also emancipated as of today -- right now,
23 today, correct?
24 A. My oldest son?
25 Q. Your youngest son.
50
1 A. Youngest son?
2 Q. He’s been emancipated?
3 A. Yes, it’s not reflective of when she emancipated him, as of his 18th birthday,
4 as she filed with the Court.
5 Q. Okay. So your issue is, even though he didn’t graduate from high school
6 until May of 2009, when he was 19 rather than 18, you think you still have a year of
7 credit coming there?
8 A. Based on her affidavit she filed with the Court, yes.
9 Q. Okay.
10 A. That’s in regards to all the children.
11 Q. But this was done in 2015, correct?
12 A. Yes.
13 Q. Over a year ago?
14 A. Yes.
15 Q. The others were emancipated almost a decade ago?
16 A. They were not -- to my knowledge, no one has informed me that they were in
17 school, so --
18 Q. Do you have any unemancipated children out of the four today?
19 A. Say that again.
20 Q. Are any of your children unemancipated today?
21 A. By operation of law, I would think not.
22 MS. HESSENFLOW: Your Honor, I’m going to ask the Court to consider
23 the exhibits. All four of the children are emancipated, some as long as almost a
24 decade ago. The other --
25 COMMISSIONER KIMMINAU: The Court finds that -- that there’s
51
1 abundant evidence, clear and convincing, that emancipation has been entered with
2 regard to all four children years ago in three of the children’s cases and over a year
3 ago in the youngest child’s case. So that issue is -- has been dealt with.
4 It is no longer an issue in this case, and we need to move on to whatever other
5 evidence you want to present, Mr. McKinzy.
6 So, Ms. Gaston, if you would retake the witness stand.
7 And you can continue with your examination, Mr. McKinzy, with the
8 understanding that all four have been emancipated at prior times.
9 MR. MCKINZY: I would just like to bring --
10 MS. HESSENFLOW: So the emancipation -- the retroactive emancipation,
11 that’s not before the Court today. We’re not going to talk about that all day.
12 COMMISSIONER KIMMINAU: I -- I was -- I heard two of you talking at
13 once.
14 MS. HESSENFLOW: I apologize. Please go, sir.
15 COMMISSIONER KIMMINAU: Yeah, Mr. McKinzy?
16 MR. MCKINZY: I was saying that the whole issue was like it was brought to
17 the -- I’m trying to bring to the Court’s attention and get is the actual date of the
18 emancipation. She filed an affidavit at 18 for my youngest son. There is no
19 definitive date of the emancipation, therefore the calculation of child support for all
20 of the other children --
21 COMMISSIONER KIMMINAU: There is a definitive date for the three
22 other children.
23 MR. MCKINZY: Well, I --
24 COMMISSIONER KIMMINAU: And that definitive date was December 12,
25 2007.
52
1 MR. MCKINZY: And I’m saying --
2 COMMISSIONER KIMMINAU: With respect to the other child, I’m going
3 to follow the law or the prior judgment followed the law in that it’s when he
4 graduates from high school is the effective date of emancipation.
5 MR. MCKINZY: So --
6 COMMISSIONER KIMMINAU: Not his 18th birthday.
7 MR. MCKINZY: -- so the affidavit that she filed with the Court, requesting
8 that he be emancipated on his 18th birthday, is null and void?
9 COMMISSIONER KIMMINAU: Well, it -- it does -- I’m not even sure
10 that’s the evidence, but --
11 MS. HESSENFLOW: It does not, Your Honor. It says -- if you look at it, he
12 graduated from high school on May 20 --
13 COMMISSIONER KIMMINAU: 2009.
14 MS. HESSENFLOW: Yes, sir. And please emancipate him and give him
15 credit, and since there was no formal pleading to give the credit, she went in on her
16 own and gave him an affidavit for credit for the difference.
17 COMMISSIONER KIMMINAU: I -- I understand the history. Those are the
18 dates. December 12 -- December 12, 2007 for the three older children and May 20,
19 2009 for Michael.
20 MR. MCKINZY: This is the affidavit she filed with the Court.
21 COMMISSIONER KIMMINAU: I -- I read the affidavit.
22 MR. MCKINZY: And doesn’t she check his 18th birthday?
23 COMMISSIONER KIMMINAU: Well, he’s 18 and graduated from high
24 school. That’s the requirement. If he was 17 and graduated from high school, he’d
25 still be unemancipated. But the law requires that he be 18 as -- as one prerequisite
53
1 and graduated from high school.
3 COMMISSIONER KIMMINAU: So that’s -- that’s why it’s May of 2009,
4 all right?
6 COMMISSIONER KIMMINAU: And she did right by you by going in and
7 filing that credit, which I’m not sure she had to do, but she did, and you will be given
8 due credit for that in the overall arrearage issue. So let’s move on beyond
9 emancipation and examine this witness in whatever other way you deem appropriate.
11 THE WITNESS: Is this your stuff here?
12 WITNESS CARLETHA GASTON RESUMED THE STAND.
13 DIRECT EXAMINATION RESUMED BY MR. MCKINZY:
14 Q. Could you state your current employment -- employer?
15 A. First Student.
16 Q. I believe in the -- in the --
17 COMMISSIONER KIMMINAU: I’m sorry, I missed that. It’s what?
18 THE WITNESS: First Student.
19 COMMISSIONER KIMMINAU: First Student?
20 THE WITNESS: Uh-huh.
22 BY MR. MCKINZY:
23 Q. And how long have you been employed by your current employer?
24 A. Three years.
25 Q. Could you state your current wage rate or how much you -- I think since
54
1 2016, would you approximate what your income was for 2016, total?
2 A. This previous -- past year?
3 Q. Yes.
4 A. 28,000-something.
5 Q. Is that your actual gross income or the adjusted gross income?
6 A. That was my gross income after my last paycheck. That was my last wages
7 after my last paycheck.
8 Q. You have the -- provided Defendant -- or Respondent to request for bank
9 statements? Do you remember providing requested discovery regarding last bank
10 statements for 2017 -- 2016?
11 A. Whatever was asked of me to provide to you at the time.
12 Q. Okay. Do you know the current -- in your response, you stated that you had
13 approximately $150 in your account. Is that an accurate account of your bank
14 statements?
15 A. Well, if that’s what you have, then that’s what you have.
16 Q. So I offer you exhibit -- Petitioner’s Exhibit 66. Would you state the gross
17 amount? That’s your 2015 tax -- W-2 from your employer, First --
18 A. 33,510.22.
19 Q. But you had previously stated your gross was approximately 26,000. That’s a
20 increase of --
21 A. Well, ’16 -- you said 2016. You didn’t say --
22 Q. Okay.
23 A. -- 2015.
24 Q. Well, would that be reflective of your gross of 2015, the 36 -- 33,510?
25 Would that be --
55
1 A. The year 2015.
2 Q. Yeah, 2015. So that’s your gross for 2015? And --
3 A. You have it in your hand, sir.
4 Q. -- would you say that that would be approximately -- you made less last year
5 than you made this year; is -- is that --
6 A. Yes.
7 Q. Okay.
8 MR. MCKINZY: I’d like to offer into evidence Petitioner’s Exhibit 66.
9 COMMISSIONER KIMMINAU: Any objection?
10 MS. HESSENFLOW: Can I see it real quick? I think it’s from the
11 discovery, and that’ll be just fine. No objection.
12 COMMISSIONER KIMMINAU: Why don’t we call that one 166, so we
13 don’t confuse them with the premarked exhibits of the Respondent.
15 COMMISSIONER KIMMINAU: Just put a 1 in front of it, if you don’t
16 mind. And the Court will receive Petitioner’s Exhibit 166.
17 (AT THIS TIME PETITIONER’S EXHIBIT 166 WAS RECEIVED IN
20 BY MR. MCKINZY:
21 Q. You also in the process of responding to discovery provided bank statements;
22 do you recall?
23 A. Whatever was told to me to provide to you, you should have it.
24 MR. MCKINZY: I guess you want to also put a 1 in front of all these.
25 COMMISSIONER KIMMINAU: Yeah, if you -- if you don’t mind, I
56
1 apologize for the inconvenience, but it’ll make matters clearer, I believe.
2 BY MR. MCKINZY:
3 Q. I offer Exhibit 164. Do you recognize that?
4 A. Yep.
5 Q. Would you tell -- state what -- what that is that you recognize?
6 A. My account transactions.
7 Q. For your checking account at UMB Bank?
8 A. Yes.
9 Q. Would you state for what the average daily -- or average daily balance is?
10 COMMISSIONER KIMMINAU: Mr. McKinzy, before you have her testify
11 --
12 MR. MCKINZY: Yeah.
13 COMMISSIONER KIMMINAU: -- from the exhibit, let’s offer it into
14 evidence --
16 COMMISSIONER KIMMINAU: -- to see if there’s any objection first.
17 MR. MCKINZY: It’s discovery.
18 MS. HESSENFLOW: No objection.
19 COMMISSIONER KIMMINAU: All right. Petitioner’s 164 will be
20 received.
23 COMMISSIONER KIMMINAU: Now you may ask her questions about it.
24 BY MR. MCKINZY:
25 Q. This is for May of 2016. Would you state for the Court what the average
57
1 daily balance of that is?
2 A. You said May?
3 Q. Well, that’s what it states.
4 A. April, May.
5 Q. The actual average balance.
6 A. As of statement date, 1,923.
7 COMMISSIONER KIMMINAU: I’m sorry, what are the numbers you’re
8 going over?
9 MR. MCKINZY: The average daily balance.
10 COMMISSIONER KIMMINAU: Yeah. Yeah, I’m -- I’m -- I’m looking for
11 her answer.
12 THE WITNESS: You said -- it’s on here as 1,923.37.
13 BY MR. MCKINZY:
14 Q. So that’s the average balance of your checking account as of May 2016?
15 A. No, 4/25/16. It says previous statement.
16 Q. So your daily balance was approximately 1,900?
17 A. It says as of 28 -- statement period, 28. But previous statement the balance
18 that I -- average daily balance this period. It doesn’t say what date, so I don’t know
19 which one to go by.
20 Q. But as of the date -- as of the date of that statement, the average daily balance
21 was 1,900?
22 A. I guess that’s what it says, yes, 1,923.37.
23 Q. I have also an exhibit marked Petitioner’s Exhibit 165.
25 BY MR. MCKINZY:
58
1 Q. These -- this appears -- this is bank statements in 2015 for a whole year.
2 Each one states your daily average balance. Could you for 2015 state what the daily
3 average balance states?
4 A. Okay. So what -- what -- what do you want me to go and do?
5 Q. Just on -- just state what the average daily balance.
6 A. Well, this is going back a long way, because this is -- this is --
7 COMMISSIONER KIMMINAU: There’s been no objection, ma’am. Just
8 read -- read the answer --
9 THE WITNESS: Oh.
10 COMMISSIONER KIMMINAU: -- if you don’t mind.
11 THE WITNESS: Okay. What do you want me to read?
12 BY MR. MCKINZY:
13 Q. Just the daily average balance.
14 A. Okay.
15 Q. As of --
16 A. 2,589.63.
17 Q. And that’s as of December 2015?
18 A. Yeah, I guess that’s what that --
19 Q. Okay. Can you read the daily balance from November of 2015?
20 A. 2,664.05.
21 Q. For October of 2015?
22 COMMISSIONER KIMMINAU: If you’re going to have her do the whole
23 year --
25 COMMISSIONER KIMMINAU: -- it’s already been received into evidence.
59
2 COMMISSIONER KIMMINAU: I certainly can read it.
4 COMMISSIONER KIMMINAU: I get your point, all right?
7 BY MR. MCKINZY:
8 Q. In response to your banking, discovery, modification that was standard
9 discovery, I guess, for -- since this is the first time I’ve dealt with -- your -- your
10 standard to provide the modification statement of assets and debts for each party. I
11 provided mine. You provided yours.
12 MR. MCKINZY: I offer Exhibit -- I guess we’ve got to put a 1.
13 COMMISSIONER KIMMINAU: What number is that, Mr. McKinzy?
15 MR. MCKINZY: 162 if we put 1 in front of it.
16 COMMISSIONER KIMMINAU: Petitioner’s 162 will be received.
19 BY MR. MCKINZY:
20 Q. On C, where it says bank accounts and lists all amounts in all checking
21 accounts, could you state what your present market value is?
22 A. $150.
23 Q. And you signed that as of -- when was that notarized or when did you sign?
24 A. It doesn’t say.
25 Q. Yeah, it does.
60
1 A. Where?
2 Q. Right there. There’s notary and the date.
3 A. Oh, June 17.
4 Q. June 17 of what year?
5 A. 2016.
6 Q. So would you agree that there’s somewhat of a difference in what you stated
7 in your modification as opposed to what’s actually in your banking account?
8 MS. HESSENFLOW: Objection, Your Honor. He asked what was in her
9 banking account for certain months in 2015. The modification statement of assets
10 and debts is from June 17, 2016. If he’d like to inquire as to what she had at that
11 time, that would form a basis. Otherwise, it’s speculation and is asking her to admit
12 facts not in evidence.
13 COMMISSIONER KIMMINAU: Yeah, it’s -- I’ll ask you to rephrase the
14 question or offer a different exhibit, Mr. McKinzy, because the two don’t match up,
15 what you’re asking.
17 COMMISSIONER KIMMINAU: The objection will be sustained.
18 BY MR. MCKINZY:
19 Q. So at the time of -- of completing the affidavit for your modification assets,
20 do you know what the approximate value that was in your banking account, which
21 you haven’t answered to, what you anticipate or what it actually was at that time?
22 A. I don’t understand what you’re saying.
23 Q. In June of 2016, do you know what your approximate value of your banking
24 account was, what the --
25 A. If it says on there 250, that’s what’s in there, or 150 or whatever is on that
61
1 paper. I can’t remember or recall right off the bat.
2 Q. But as of December, previous months, you did maintain substantially more
3 than 250 or 150; would you agree?
4 A. Well, I would -- I would think so, but I have other money coming in from
5 you, so that --
6 Q. You had $200 a month coming in from me, but the --
7 A. No. No, not -- that’s not clear. I had other money coming in from you on a
8 weekly basis, so that would jack up the cost of what’s on there, so --
9 Q. Okay. So you’re -- you’re -- you’re -- you’re just saying that the money that
10 was coming in, you were actually putting in the bank?
11 A. Well, what was coming in had to go back out for bills and whatever else, so
12 your money coming in, I used it, so -- on this court case and everything else, so what
13 you might see now is not the -- the same.
14 Q. But as of last year, when this case was filed --
15 A. Whatever you see up there, sir, that’s what you see. I can’t -- I can’t testify to
16 what else be done unless you are just trying to itemize everything, because I can’t
17 itemize my whole life for you. Just tell me.
18 COMMISSIONER KIMMINAU: You’ve answered the question.
20 COMMISSIONER KIMMINAU: Let’s ask another one.
21 BY MR. MCKINZY:
22 Q. Do you still reside at 8609 East 87th Street?
23 A. No, I don’t. No, I don’t.
24 Q. Was that a house that you did reside at previously?
25 A. Yeah, with my ex and four children.
62
1 Q. Do you recall when it was -- when you no longer resided there? What was
2 the last date of residency there?
3 A. January of 2003.
4 Q. When -- do you recall when you moved into that residence?
5 A. It was in 2000, I think July or August.
6 Q. Did you maintain your residence there the entire time until January of 2003?
7 A. Yes.
8 Q. You -- you and your children resided there?
9 A. Yes, with you partially.
10 Q. Okay. What ultimately happened to the residence?
11 A. Because you didn’t keep up the -- the -- the mortgage payment --
12 MR. MCKINZY: I’ll strike the -- strike --
13 THE WITNESS: -- according to --
14 COMMISSIONER KIMMINAU: Just a second. What -- what are you
15 saying, Mr. McKinzy?
16 MR. MCKINZY: I asked her what was the -- what was the ultimate
17 disposition of the property, not the reasons, but what actually -- what was --
18 COMMISSIONER KIMMINAU: I’ll sustain the objection. Just tell him
19 what happened to the property. And if you want to develop later on through your
20 attorney what the reasons are, that’s up to you guys.
21 THE WITNESS: It was sold.
22 BY MR. MCKINZY:
23 Q. Do you know what the pricing that it was sold at?
24 A. 70-something thousand.
25 Q. Okay. Do you recall at the time of purchase what the purchasing price of the
63
1 property was?
2 A. I don’t have that in front of me, so I can’t make a definite figure as to what it
3 was.
4 Q. But it was sold at a -- at a -- at a gain? You did retain some of the income
5 from that?
6 A. I did not. I had to sell it to get it out of foreclosure.
7 Q. You didn’t receive any proceeds from the sale?
8 A. Not nothing.
9 Q. But it -- okay. If --
10 A. You signed -- you -- you signed it, so you knew when the -- the -- the
11 contractor came to sell it, you could have found out yourself what they wanted or if
12 you wanted anything out of it, but I sold it because it was in foreclosure and it would
13 have damaged my credit and yours, so it was sold to them to keep it from going
14 under foreclosure.
15 Q. Okay. Do you recall being -- having a $37,500 down payment placed on it
16 when it was purchased in 2002?
17 A. I can’t tell you what --
18 MS. HESSENFLOW: Your Honor, I -- I’ve given some --
19 COMMISSIONER KIMMINAU: Just a second. Just --
20 MS. HESSENFLOW: -- leeway here. I’m going to object to relevance of
21 houses that have been foreclosed 14 years ago bearing on the issue of maintenance
22 today.
23 COMMISSIONER KIMMINAU: A little bit of leeway has been given here,
24 Mr. McKinzy. What’s the relevance of a down payment on a house that has been
25 sold a long time ago?
64
1 MR. MCKINZY: Just that the -- the equity of the house had approximately
2 37,000 that was -- that was --
3 COMMISSIONER KIMMINAU: That’s not what we’re here about today.
5 COMMISSIONER KIMMINAU: All right? So I’m going to sustain the
6 objection, and let’s move on.
8 BY MR. MCKINZY:
9 Q. So currently, do you have anyone currently living in your -- at your
10 residence?
11 A. Yes, I do.
12 Q. Are they dependents, adopted children, or someone that you’re responsible by
13 law to provide support for?
14 A. Well, I’m responsible for your daughter, your 31-year-old daughter and two
15 grandchildren.
16 Q. You’re responsible by law to provide for --
17 A. No, I -- I take care of them, because they have nowhere to go.
18 Q. Okay.
19 A. Do you provide it?
20 Q. But your -- they’re not legal dependents of -- of --
21 A. No, they’re not.
22 Q. So in addition to providing for yourself, you also provide a living space for
23 your -- your daughter and your grandchildren?
24 A. Your daughter and our two grandchildren.
25 Q. And how long have they been residing there with you?
65
1 A. About a year and a half now.
2 Q. Okay. Is anyone other than yourself working in the household?
3 A. No.
4 Q. Your daughter’s not currently working?
5 A. You know that. You just saw her day before yesterday.
6 COMMISSIONER KIMMINAU: Ma’am, please just answer the question
7 and do not argue with the --
8 THE WITNESS: No.
9 COMMISSIONER KIMMINAU: -- examiner, if you don’t mind.
10 BY MR. MCKINZY:
11 Q. Do you know her last time of employment?
12 A. I don’t know anything about her last employment.
13 Q. But she’s been -- she’s been living in your residence for over a year, but you
14 don’t --
15 A. She’s worked off and on. I -- I don’t keep up with that.
16 Q. So you don’t know her income?
17 A. I don’t know her income.
18 Q. But she’s been allowed to reside in your residence?
19 A. Yes.
20 Q. Without -- does she pay rent?
21 A. Yes. She does not pay rent.
22 Q. Does she provide any income or does she take care of any of the bills?
23 A. She does not pay any rent. She does not pay anything. I support her and the
24 children because she’s having a hard time.
25 Q. Okay. And how many grandchildren are we talking about?
66
1 A. Zyire (phonetic spelling) and Zion.
2 Q. Would you state their age?
3 A. Zion is 5 and Zyire is 6.
4 Q. And they’ve been residing there and -- and attending school from your
5 residence?
6 A. Yes.
7 Q. Over a year?
8 A. Yes.
9 Q. Okay. And you’re the sole provider for --
10 A. Yes, I am.
11 Q. -- income for the whole household?
12 A. Yes.
13 Q. And the household consists of --
14 A. Yes.
15 Q. -- four? You have four --
16 COMMISSIONER KIMMINAU: I got it.
17 BY MR. MCKINZY:
18 Q. Do you believe that you are in need of continuation of spousal support?
19 A. Well, it was an agreement between me and you verbally, but the thing of it is
20 I’m going on what the law says. Whatever --
21 Q. Well, what’s the agreement that you recall it being?
22 A. Is that you told my daddy and my parents upon my dad’s death that you
23 would make sure that you take care of me, and that’s what you made accusation
24 when I had the stroke three years ago. You said that again on the phone to me. My
25 sister was on agreement on the phone when you did say it. And then if my pastor
67
1 was to come and other church members, they would say the same, so -- but I’m going
2 off the law. You know, if your word is not bond, I have nothing to do with that.
3 Q. So how long would you -- would you believe, if -- if I was to hold my
4 agreement that supposedly we made, that I would be responsible for providing
5 support for you, for the rest of your life, possibly?
6 A. You couldn’t do that.
7 Q. I just asked do you believe I would be responsible, based on the agreement
8 that we supposedly had, that I would provide --
9 A. If that was the agreement, yes.
10 Q. Do you recall that being the agreement?
11 A. Yes.
12 Q. That I would provide support for you for the rest of your life?
13 A. Yes.
14 Q. Okay. Are you aware of any additional needs regarding the children that you
15 are currently residing -- residing in your household? Are you providing any extra
16 medical needs?
17 A. I -- I can’t get into that with you. That’s a personal private matter.
18 COMMISSIONER KIMMINAU: Ma’am, answer the question, because if
19 you’re still seeking maintenance, it could be relevant to what my decision will be,
20 regardless of any prior understanding.
21 THE WITNESS: My daughter has a drug and substance abuse, and that’s the
22 reason why she does not maintain a job, and that way -- that’s the reason why the
23 children stay up under me is because she can’t properly take care of them.
24 BY MR. MCKINZY:
25 Q. Okay. Until this hearing, was that something that was discussed between --
68
1 that you provided to me previously?
2 A. About what?
3 Q. The drug problem?
4 A. You -- you were under the understanding. I told you about a year ago. I took
5 you in confidence before you got into your feelings, and I let you know all the times
6 that was going on. You did not make any determine to come and seek the help. You
7 took it out on me for whatever reason. I’m not asking you to take care of your child.
8 That’s on you. You -- you have been directed and told about the situation. I’m doing
9 what any good parent is doing to save their child’s life. If you don’t see that in your -
10 - foresee the future about your child, I -- I can’t -- I can’t have nothing to say about
11 that. But I’m not going to set her and these two minor children out on the street and -
12 - and have to live with something happening to them. So I -- I don’t -- I don’t get
13 anything else, but I’m doing the best that I can.
14 Q. Well, what you -- would it be safe to say that a large percentage of your
15 income goes toward providing the medical need for your daughter and her medical
16 situation of the children that you’re having to endure additional cost --
17 A. Food, medical, school, clothes, everything that -- that is needed.
18 Q. Because she’s not employed and the children have needs --
19 A. Yes.
20 Q. -- and because she’s not able to provide --
21 A. Yes.
22 Q. -- for those needs due to her drug problem?
23 A. Yes.
24 MR. MCKINZY: I offer Exhibit 163.
25 MS. HESSENFLOW: I have no objection to it, but it’s not her -- it’s -- I
69
1 have no objection to it.
2 COMMISSIONER KIMMINAU: Which number is it, Mr. McKinzy?
3 MR. MCKINZY: 163.
4 COMMISSIONER KIMMINAU: Petitioner’s 163 will be admitted.
7 BY MR. MCKINZY:
8 Q. This is in response to discovery. Does it -- do you recall providing that
9 information?
10 A. Yeah, that’s what we gave to you.
11 COMMISSIONER KIMMINAU: What is it exactly? I haven’t seen
12 anybody identify it.
13 MR. MCKINZY: It’s a --
14 THE WITNESS: Income.
15 MR. MCKINZY: -- income and expense statement for Respondent.
16 BY MR. MCKINZY:
17 Q. Could you read the title and just read the weekly and -- and monthly gross?
18 A. Modification income and expense statement of Respondent. Average during
19 first time school year, 1/4 to 5/15 and 8/15 to 12/21, 37 weeks, gross wage pay period
20 --
21 Q. Per weekly? Is that bi-weekly?
22 A. What 721?
23 Q. Yes. That’s the weekly?
24 A. Gross wages per pay period.
25 Q. Is that -- yeah, that’s weekly, isn’t it?
70
1 A. Yeah.
2 Q. And you’ve marked weekly?
3 A. Uh-huh.
4 Q. Okay. And the monthly gross?
5 A. Is 3,065.61.
6 Q. Okay.
7 COMMISSIONER KIMMINAU: 3,000 -- what?
8 THE WITNESS: $65.
10 MR. MCKINZY: I offer Exhibit 163.
11 COMMISSIONER KIMMINAU: It’s been received.
13 BY MR. MCKINZY:
14 Q. Are you aware of any of the other children’s needs as far as are you providing
15 any support or regarding any of the other children?
16 A. Well, your oldest son I took care of when he had a pulmonary embolism that
17 liked to killed him, and you never came to the hospital.
18 COMMISSIONER KIMMINAU: So is the question what are you currently
19 spending on the other children?
20 MR. MCKINZY: Yes. What are -- are there any other expenses?
22 COMMISSIONER KIMMINAU: Are there any expenses for him you’re
23 currently paying?
24 THE WITNESS: He was -- he was staying with me because he had to be put
25 in a -- in the hospital because he lost his mind and didn’t know where he was, so I
71
1 had to take care of him.
2 COMMISSIONER KIMMINAU: What timeframe are we talking about?
3 THE WITNESS: Last February through -- he was through almost July with
4 me before he went back to work.
5 COMMISSIONER KIMMINAU: February to July of 2016?
6 THE WITNESS: March -- March 8.
7 COMMISSIONER KIMMINAU: Of 2016?
8 THE WITNESS: Yes.
10 BY MR. MCKINZY:
11 Q. And he was residing in your residence at that time?
12 A. Yeah.
13 Q. And he was not working and you were providing for him as well?
14 A. Yeah.
15 Q. And that would be in addition to our daughter and the two children?
16 A. Yeah.
17 Q. So you had approximately five residents residing with you and you were the
18 only one --
19 A. Yeah.
20 Q. -- working at the time? Do you have any other expenses that are incurred due
21 to the children from --
22 A. I have expenses on my own, because I just come after fighting colon cancer.
23 So after all I’ve had to go through, I’ve had to fight, and everything that I’ve worked
24 for is basically -- is I have to work and do what I’ve got to do no matter what I had to
25 do. I work from sun up to sundown. I get up at 3:00 and don’t get home till 7:00,
72
1 8:00 at night, because I’m taking whatever they give me.
2 Q. So you -- you have additional expenses? In addition to providing for your
3 children, you have additional medical expenses as well --
4 A. Yes.
5 Q. -- for yourself?
6 A. Yes.
7 Q. Is there any additional cost that’s -- that you spend on any of the other
8 children -- the other two children?
9 A. Like on Deron?
10 Q. Yes.
11 A. I’ve had Deron live with me for a month or so while he got his -- you know,
12 his place to live. But, like I said, I’ve taken care of everybody. My mother. I send
13 my mother money because my mother is sick, but I’m not going to go through that.
14 That -- that is kind of personal between me and my family.
15 Q. Approximately how much money do you send your mother?
16 A. Her -- her medicine is almost $400 a month.
17 Q. So you send her $400?
18 A. So I send her between two and four and whatever my other brothers and
19 sisters come up with.
20 Q. How long have you been doing that?
21 A. I’ve been doing that a long time.
22 Q. How long would you approximate?
23 A. Since she went on dialysis about three years ago.
24 Q. Okay. Do you have any other expenses beyond yourself, any other family
25 members or expenses that you have taken on and provided support for?
73
1 A. No.
2 Q. Would you state or question that your income that you have is sufficient to
3 provide -- to provide support for just yourself? What you -- if you didn’t have all
4 these other expenses you’re -- because of providing for your mother, because
5 providing for our daughter, because providing for Deon and the children, if you
6 didn’t have all these expenses, that you would have sufficient income to provide for
7 yourself if you didn’t have the responsibilities that you’ve taken on?
8 A. I would have to work hard to get it, but it would have been all right under --
9 under what the Court asked. If they took me off, that was -- I’m going to have to do
10 what I have to do, so the thing of it is I work hard in order to be able to have more
11 than I need to keep up, because I don’t know when I’m going to get sick, when I’m
12 going to be out, so I have to take what I have to do at that job. So whatever I have to
13 do, I’m going to do it.
14 Q. Okay. So would that be, yes, you would have sufficient funds if you were not
15 providing the -- caring for your mother? Where is she currently residing?
16 A. She is in Arkansas.
17 Q. What -- what exactly -- what city?
18 A. Don’t make -- don’t worry about it.
19 MR. MCKINZY: Your Honor, would you --
20 THE WITNESS: Why is my mother a problem to you?
21 COMMISSIONER KIMMINAU: Well, I’m not sure exactly what the
22 relevance is, but I -- is there a reason you don’t want to give the information?
23 THE WITNESS: Because he doesn’t have anything to do with her. My thing
24 of it is the basis of what I give to her is out of me.
25 COMMISSIONER KIMMINAU: What’s the relevance --
74
1 THE WITNESS: It’s not from him.
2 COMMISSIONER KIMMINAU: -- of where she lives? She’s admitted how
3 much money she’s sending to her each month.
4 MR. MCKINZY: Well, but it’s -- it’s not -- she’s not locally located. She’s
5 actually located in a different state. So she’s sending -- in addition to providing
6 support, she’s providing support out of state as well.
7 THE WITNESS: Yes.
8 COMMISSIONER KIMMINAU: Well, what difference does that make?
9 THE WITNESS: Yes.
10 COMMISSIONER KIMMINAU: It’s the same amount of money, isn’t it?
11 MR. MCKINZY: Yeah, same amount of money, but it’s -- it’s -- it’s not like
12 someone living in your -- like I have a family member that -- that reside in
13 California.
14 COMMISSIONER KIMMINAU: Well, she said Arkansas.
15 MR. MCKINZY: All right.
16 COMMISSIONER KIMMINAU: Let’s go with that, all right?
18 THE WITNESS: Yeah.
20 BY MR. MCKINZY:
21 Q. And you’ve provided -- been providing approximately 2 to $400, sending to
22 her to Arkansas for the last three years she’s been on dialysis?
23 COMMISSIONER KIMMINAU: Believe it or not --
24 THE WITNESS: Don’t worry about that.
25 COMMISSIONER KIMMINAU: -- when you guys ask a question and she
75
1 gives an answer --
2 MR. MCKINZY: Yes.
3 COMMISSIONER KIMMINAU: -- I’ve got plenty of notes here.
5 COMMISSIONER KIMMINAU: You don’t need to ask it again.
7 COMMISSIONER KIMMINAU: All right? And that’s -- that’s for
8 everybody’s --
10 COMMISSIONER KIMMINAU: -- benefit, all right?
11 MR. MCKINZY: Okay. That’s all I have regarding --
12 COMMISSIONER KIMMINAU: This witness?
13 MR. MCKINZY: -- this -- at this time, yes.
14 COMMISSIONER KIMMINAU: Well, there may not be another time, so
15 make sure that whatever you need to ask her --
17 COMMISSIONER KIMMINAU: -- you’re going to ask her now.
18 BY MR. MCKINZY:
19 Q. I offer you Exhibit I guess 2 -- or --
20 COMMISSIONER KIMMINAU: Which -- which number do you have on
21 it?
22 MR. MCKINZY: 2.
23 COMMISSIONER KIMMINAU: No. 2? Let’s make it 102.
24 BY MR. MCKINZY:
25 Q. Is that a document that you recall seeing?
76
1 A. Yeah.
2 Q. You recall --
3 A. This is probably back in the first case back in 2002.
4 Q. Do you --
5 COMMISSIONER KIMMINAU: Can you identify it? What is it?
6 THE WITNESS: A child support obligation worksheet.
7 MR. MCKINZY: It’s a Form 14.
9 MR. MCKINZY: Could you state what the --
10 COMMISSIONER KIMMINAU: Well, again, before you have her testify
11 from it, let’s see if there’s any objection to it, so offer it into evidence, if you would.
13 COMMISSIONER KIMMINAU: Show it to Ms. Hessenflow, please.
15 COMMISSIONER KIMMINAU: Petitioner’s 102 will be received.
18 BY MR. MCKINZY:
19 Q. Would you state what -- you’ll be the custodial or I’m the obligated -- how do
20 they have it -- receiving support right here.
21 COMMISSIONER KIMMINAU: Mr. McKinzy, before you get to that, can
22 you tell me what date that is supposed to represent?
23 MR. MCKINZY: It’s -- it was prepared by the child support Erin Simmons
24 on June -- June 24, 2002 and reflects the --
25 COMMISSIONER KIMMINAU: June 2002. All right.
77
1 MR. MCKINZY: Yes.
2 COMMISSIONER KIMMINAU: Now you can ask your questions.
3 MR. MCKINZY: It reflects the -- the number of children, four.
4 BY MR. MCKINZY:
5 Q. And could you show what receiving -- the parent receiving the child support
6 income --
7 COMMISSIONER KIMMINAU: What her income is?
9 THE WITNESS: The basic child support amount here?
10 BY MR. MCKINZY:
11 Q. No, your income. What they -- right here. What they state your income --
12 A. Okay.
13 Q. -- monthly income -- gross monthly income.
14 A. Okay. 1,560.
15 Q. And that was back in June of 2002?
16 A. Uh-huh.
17 COMMISSIONER KIMMINAU: You need to answer yes or no, ma’am.
20 BY MR. MCKINZY:
21 Q. Do you recall providing documentation to help provide -- prepare this
22 document?
23 A. Yeah, my check stub.
24 Q. So your check stub reflected that amount? You would -- that’s the
25 information you provided?
78
1 A. That’s the information I provided to them.
2 Q. Okay.
3 MR. MCKINZY: I offer it into evidence.
6 MS. HESSENFLOW: Your Honor, if it’s permissible, may I take a look at
7 Petitioner’s Exhibit 164 and 165, if the Court’s finished with them? I don’t have
8 copies. I just want to look at them a little more, if I could, please. I don’t know if
9 I’m going to have questions about them. The two bank statements, I believe.
10 COMMISSIONER KIMMINAU: You need copies, you said?
11 MS. HESSENFLOW: I don’t have copies. I just wanted to look at yours real
12 quick. I may have questions. I’ll give them back to you. Thank you.
13 MR. MCKINZY: Okay. This will be 146. Put a 1 in front of the exhibit?
14 COMMISSIONER KIMMINAU: Yeah, do that with all of them.
16 COMMISSIONER KIMMINAU: 1 through 10, just make it 101, 102, et
17 cetera.
18 MR. MCKINZY: Okay. This is Petitioner’s Exhibit --
19 MS. HESSENFLOW: I object to this. I didn’t receive it in discovery. I’ve
20 not seen it before. And it was asked for in discovery, actually.
21 COMMISSIONER KIMMINAU: What is it?
22 MS. HESSENFLOW: It’s his wages, his Social Security statement. This is
23 something that, again, I asked for taxes showing his wage history.
24 COMMISSIONER KIMMINAU: What year is it?
25 MS. HESSENFLOW: All --
79
1 MR. MCKINZY: It’s a printout --
2 MS. HESSENFLOW: -- it looks like all of them.
3 MR. MCKINZY: -- from 2015. It’s a print off that -- I was locked out and I
4 couldn’t get into. I got it -- I got the update. But it’s -- it’s not my -- I haven’t filed
5 taxes for 2015. I haven’t filed taxes for 2016.
6 MS. HESSENFLOW: Does it show your income for 2012, ’13, ’14, ’15 that
7 would have been on the tax returns I requested -- your tax returns?
8 MR. MCKINZY: It shows my complete work history.
9 MS. HESSENFLOW: Renew objection.
10 COMMISSIONER KIMMINAU: I’m -- what’s the relevance? There’s an
11 order of maintenance that was entered by a court several years ago.
13 COMMISSIONER KIMMINAU: And so that goes back to what, 2007 or
14 something?
16 THE WITNESS: ‘2.
17 MR. MCKINZY: But -- and it’s all based on information, as she testified,
18 that was information she provided -- information --
19 COMMISSIONER KIMMINAU: Well, I’m not going to go back and undo
20 what prior courts have done. What I’m going to do is see what, if anything, is
21 different since the last order and determine whether or not a modification or
22 termination is appropriate. But I’m not going to undo what prior judges have done.
23 MR. MCKINZY: Okay. Well, this reflects the income for 2014.
24 COMMISSIONER KIMMINAU: Well, again, that was an issue that was
25 raised by Ms. Hessenflow in her motion for limine. Did you file a tax return for
80
1 2015?
2 MR. MCKINZY: No, I have not. I provided her a affidavit, allowing her
3 access to those tax information, as she provided to me.
4 COMMISSIONER KIMMINAU: Well, is there -- how serious is your
5 objection if we redact everything but 2015 and ’16 on the Social Security statement,
6 Ms. Hessenflow?
7 MS. HESSENFLOW: As long as it just shows 2015 and ’16 that I received
8 information for, I have no objection.
9 COMMISSIONER KIMMINAU: Yeah, because he couldn’t provide a tax
10 return if he didn’t file one. But I’ll let you talk about ’15 and ’16. And let’s -- let’s
11 go with that.
13 MS. HESSENFLOW: May I see it? Did it have ’15 and ’16 on it?
14 MR. MCKINZY: No, this one's -- that's --
15 MS. HESSENFLOW: Oh, so you’ve got another one now that has ’15 and
16 ’16 on it?
17 MR. MCKINZY: Well, no, ’16 is -- is not one I have, because I haven’t
18 gotten my W-2 from ’16.
19 MS. HESSENFLOW: I don’t have any objection to him handing her the
20 exhibit and asking what his -- it shows his taxable wages for 2015 to be. It doesn’t
21 show anything ’16. I don’t have a problem with ’15.
22 COMMISSIONER KIMMINAU: All right. Go ahead and do that, if you
23 would, Mr. McKinzy, and we’ll get ’15 into evidence.
24 MR. MCKINZY: Okay. I’ll -- I’ll -- I’ll respect her objection.
25 COMMISSIONER KIMMINAU: All right. Thank you. You withdraw the
81
1 exhibit?
2 MR. MCKINZY: Yes, I’ll withdraw the exhibit.
3 COMMISSIONER KIMMINAU: All right. Thank you.
4 MS. HESSENFLOW: I have not seen that before. It says it’s an income and
5 expense statement of my client, and I have not seen it before.
6 MR. MCKINZY: It’s in the case file. It’s the original case file.
7 MS. HESSENFLOW: It’s the first --
8 MR. MCKINZY: Yes.
9 MS. HESSENFLOW: -- it looks like the first page of an income and expense
10 statement. It’s not a complete document. If you’re asking me if I would admit that
11 as an income and expense, I would object. It’s the first page of something I’ve never
12 seen before.
13 COMMISSIONER KIMMINAU: No signature anywhere, correct?
14 MR. MCKINZY: No.
15 COMMISSIONER KIMMINAU: All right. Then we’re not going to admit
16 that.
17 MR. MCKINZY: It’s the same -- it’s W-2 -- I mean, it’s in the case file. The
18 Court can take judicial notice of it. It’s just what -- what’s available and what --
19 COMMISSIONER KIMMINAU: How far -- how far back is that one?
20 MR. MCKINZY: That’s the original divorce decree.
21 COMMISSIONER KIMMINAU: 2007?
22 MR. MCKINZY: 2002.
23 COMMISSIONER KIMMINAU: ‘2. And the relevance of that would be
24 what?
25 MR. MCKINZY: It is comparative to what her -- what her reported income
82
1 was upon the initial divorce compared to what it is now.
2 COMMISSIONER KIMMINAU: The divorce was in ’02?
3 MR. MCKINZY: Yes.
4 COMMISSIONER KIMMINAU: Okay. If that’s not a complete document,
5 you can ask her questions, but the document’s not coming in.
6 BY MR. MCKINZY:
7 Q. Do you recall producing or providing documents during the divorce hearing
8 that we had, the divorce trial? At the bottom, it states, “The income tax my husband
9 has.” Is that something you provided -- stated at the bottom?
10 A. My total gross income?
11 Q. No, where it says, “Income tax my husband has -- husband has records,” do
12 you recall --
13 A. I don’t understand what you -- what you’re wanting me to say.
14 COMMISSIONER KIMMINAU: Are you asking what her income was back
15 in ’02?
16 MR. MCKINZY: No, do -- yes.
17 BY MR. MCKINZY:
18 Q. Do you recall providing the Court at the time of the divorce this approximate
19 information that you are working part-time, working nine hours -- nine months out of
20 the year?
21 A. Well, the attorney I had at first provided this, Mark Mead -- not Mark Mead.
22 COMMISSIONER KIMMINAU: The question is whether or not that was
23 your income back then.
24 THE WITNESS: Yeah, I think so, yeah.
25 BY MR. MCKINZY:
83
1 Q. Were you working part-time?
2 A. Part-time.
3 Q. So would you read into the record what the --
4 A. But that was not weekly.
5 Q. No, but the gross monthly -- well, it states --
6 A. 452.16 bi-weekly.
7 Q. And the monthly gross -- monthly gross?
8 A. 452.16 twice --
9 Q. Well, no, the monthly gross.
10 A. -- will come up with the -- okay. 972.14?
11 Q. Yes, 972.14. And you were working part-time at that time?
12 A. Yeah.
13 Q. Approximately how many hours were you working then?
14 A. I can’t tell you. I don’t know. I can’t remember.
15 Q. It was part-time?
16 A. I can’t remember, but it was part-time. Working for a bus company is part-
17 time.
18 Q. You currently --
19 A. We just pick up whatever.
20 Q. -- but you -- you currently work for a bus company now?
21 A. Yes.
22 Q. Is it part-time?
23 A. It’s still considered part-time.
24 Q. And your hourly wage now is? What is your hourly wage at your current
25 employer?
84
1 A. 16.89.
2 Q. 16.89. And you work how many approximate hours per week?
3 A. About 38 to 40 hours a week.
4 Q. And it’s part-time because it’s not a consistent 40?
5 A. Yes.
6 Q. Okay. Do you still only work part-time because there’s no availability of
7 additional hours or --
8 A. On -- on -- on that, we have to be on routes, and whatever that we don’t
9 maintain, we do with field trips, like we take schools to different places where they
10 have to -- you know, training and different stuff, so that makes up a lot of the
11 difference of what we make other than our -- actually, we are guaranteed 25 hours a
12 week.
13 Q. So that’s what you’re guaranteed, and if --
14 A. That’s all I’m guaranteed is 25 hours a week.
15 Q. And from last year, you made 33,000. I guess you on a number of occasions
16 are able to work over that to be able to make 33,000, based on availability of work?
17 A. And, well, that’s based on me working in other parts of town, going to work
18 for other First Student companies in Missouri, you know, when they were starting up.
19 So a lot of the income we’re doing a lot of extra stuff. It’s not just basically one strict
20 thing. We could be doing a lot of other things. So this year, it could be we could get
21 more hours this time. Next year, it might go down. Depends on the availability of
22 work they have for us.
23 Q. Okay.
24 COMMISSIONER KIMMINAU: Mr. McKinzy, at some point you offered
25 and it was received Petitioner’s Exhibit 163, which is the income and expense
85
1 statement of the Respondent.
2 MR. MCKINZY: Yes.
3 COMMISSIONER KIMMINAU: I don’t have that.
4 MR. MCKINZY: I think she took it for reviewing.
5 MS. HESSENFLOW: I have 164 and 165.
6 COMMISSIONER KIMMINAU: Yeah, I don’t have 163, which is the
7 income and expense statement.
8 THE WITNESS: And my employer did write a letter.
11 COMMISSIONER KIMMINAU: There’s no question.
12 Well, you can look for it during the break or at lunch here, but let’s -- let’s
13 move on, and --
15 COMMISSIONER KIMMINAU: -- in the next few minutes, we’ll take a
16 break -- lunch break.
17 MR. MCKINZY: Okay. I thought I gave everything --
18 MS. HESSENFLOW: Mr. McKinzy, I have it marked separately --
19 MR. MCKINZY: Thank you. I hate losing stuff.
20 MS. HESSENFLOW: -- as Respondent’s Exhibit 49. Why don’t you reoffer
21 it and give everybody a copy? It’s the exact same one you just put in. I don’t know
22 where yours is, but I have it too, so --
23 MR. MCKINZY: I have it.
24 MS. HESSENFLOW: I know you have it, but nobody -- the Judge can’t find
25 his copy, so I’ve got it too if you want to --
86
1 COMMISSIONER KIMMINAU: Thank you. Respondent’s 49, which is the
2 same as Petitioner’s 163 --
3 MR. MCKINZY: Yeah, it’s the same thing.
4 COMMISSIONER KIMMINAU: -- is received.
7 MR. MCKINZY: Okay. Well, that’s major.
8 COMMISSIONER KIMMINAU: I have multiple copies of 49, so --
9 MR. MCKINZY: I know --
10 MS. HESSENFLOW: We can spread them around.
11 COMMISSIONER KIMMINAU: Here’s -- thank you.
12 MR. MCKINZY: I had it before. Okay.
13 BY MR. MCKINZY:
14 Q. What is your current rent where you currently reside?
15 A. Do I have to answer that?
16 COMMISSIONER KIMMINAU: What’s the question?
17 MR. MCKINZY: What her current rent where she resides is.
18 MS. HESSENFLOW: How much is your rent?
19 COMMISSIONER KIMMINAU: Current what?
21 COMMISSIONER KIMMINAU: Rent?
22 MS. HESSENFLOW: How much do you pay in rent?
24 BY MR. MCKINZY:
25 Q. 603?
87
1 A. Yes.
2 Q. Does that include utilities, or are utilities in addition?
3 A. Well, utilities is in addition.
4 Q. Okay. What is your --
5 A. Water, sewer, light, gas.
6 Q. What would you estimate your -- your -- for your residence or rental cost for
7 living?
8 MS. HESSENFLOW: Your Honor, I’m going to object at this time and ask -
9 - there’s already an exhibit --
10 COMMISSIONER KIMMINAU: Yeah, exhibit --
12 MS. HESSENFLOW: -- that has all of that set forth --
13 COMMISSIONER KIMMINAU: -- Petitioner’s --
14 MS. HESSENFLOW: -- that’s in evidence.
16 MS. HESSENFLOW: If he disputes any of those or wants to question --
17 COMMISSIONER KIMMINAU: Yeah.
18 MS. HESSENFLOW: -- specific things, that’s fine, but it’s all on paper.
19 COMMISSIONER KIMMINAU: She’s already given her version --
20 MR. MCKINZY: All right. Okay.
21 COMMISSIONER KIMMINAU: -- of her monthly living expense,
22 Mr. McKinzy.
24 COMMISSIONER KIMMINAU: And that’s on your 163 or Respondent’s
25 49.
88
2 COMMISSIONER KIMMINAU: So if you want to ask questions about the
3 expenses, then you can do that.
5 COMMISSIONER KIMMINAU: But they’re already listed.
7 BY MR. MCKINZY:
8 Q. So I’ll offer -- ask you to Exhibit 49 on the fourth page, at the date of last
9 income, it states what your income was. What does it say?
10 A. At the date of the last order --
11 Q. Modification.
12 A. -- my gross monthly income was 1,627 -- $627.
13 Q. And that was in 2007? That was the modification order?
14 A. I’m not sure.
15 Q. Do you recall submitting a request or providing the information?
16 A. I’m not sure.
17 Q. But at any rate, that’s -- currently, that’s almost double -- you’ve almost
18 increased your income by double from what was provided last -- on the last
19 modification? Would you agree, at 3,000, that’s approximately double your income?
20 Actually, current is 3,065, and what you -- would that be a reflection --
21 COMMISSIONER KIMMINAU: Mr. McKinzy, I can -- I can do the math.
23 COMMISSIONER KIMMINAU: I -- I -- I know that she’s making more
24 now than she did then.
89
1 COMMISSIONER KIMMINAU: I think that’s the point you’re trying to
2 make, correct?
4 COMMISSIONER KIMMINAU: Okay. So if we could, you know --
6 COMMISSIONER KIMMINAU: -- move on to another subject then.
7 MR. MCKINZY: All right. And if we want to take a break, this --
8 COMMISSIONER KIMMINAU: Yeah, do you have anything else you want
9 to ask her before we do?
10 MR. MCKINZY: No.
11 COMMISSIONER KIMMINAU: All right. It is lunch. Before we take
12 another witness, let’s -- let’s break for that, and we’ll resume right at 1:00.
14 COMMISSIONER KIMMINAU: All right. Thank you. We’re in recess.
15 o0o
16 COMMISSIONER KIMMINAU: We’re back on the record in McKinzy and
17 Gaston, 02FC200809-04. When we recessed after the morning session,
18 Mr. McKinzy had just finished questioning Ms. Gaston.
19 Ms. Hessenflow, did you want to have questions of your client now or
20 reserve the right for your case in chief?
21 MS. HESSENFLOW: Your Honor, if it’s -- if it’s convenient with -- and I --
22 and I don’t mean this in a bad way. With Mr. McKinzy being a pro se, I think maybe
23 if he did maintenance, maintenance, and then we did what’s owed, what’s owed, it
24 would be easier to keep track and for you to have a compact unit of what both sides
25 have to say.
90
1 COMMISSIONER KIMMINAU: Do you have any objection to that,
2 Mr. McKinzy?
3 MS. HESSENFLOW: In other words, instead of cross-examining her about
4 the maintenance and then digging in to what’s owed, what the interest, what the
5 attorney’s fees are, I’m just going to ask her questions about the maintenance. And
6 then if you want to testify or you have other witnesses, you can, and then we’ll move
7 to the next issue and everybody will get to testify and say their thing.
9 COMMISSIONER KIMMINAU: Okay with you to do it that way?
10 MR. MCKINZY: Yeah, that’s fine.
11 COMMISSIONER KIMMINAU: All right. Then, if you would, Ms. Gaston,
12 take the stand again. I know you’ve been back and forth all morning, but --
13 MS. HESSENFLOW: Back and forth. But I think as confusing as -- and as
14 much paperwork as there is, it’ll be easier to keep track of that way, I hope.
15 COMMISSIONER KIMMINAU: I -- I don’t disagree.
16 All right. Ms. Gaston, remember that you’re still under oath, all right?
17 THE WITNESS: Yes, sir. Yes, sir.
18 CROSS-EXAMINATION BY MS. HESSENFLOW:
19 Q. All right. I’m going to hand you what’s been marked as Respondent’s
20 Exhibit 5 and ask you if you recognize that as your modification asset and debt
21 statement that’s already been offered into evidence --
22 A. Yes.
23 Q. -- by the Petitioner.
24 MS. HESSENFLOW: Just for ease of not having to dig it out and so
25 everyone has a copy, I’m going to offer it again as Respondent’s Exhibit 5.
91
1 COMMISSIONER KIMMINAU: And it’s received.
5 Q. Do you own any property?
6 A. No.
7 Q. No home?
8 A. No. No.
9 Q. You don’t even own a car?
10 A. No.
11 Q. You don’t have any assets that produce income that are worth anything that
12 you could live off of?
13 A. No.
14 Q. Do you have any more property that you could use to support yourself today
15 than you did in 2002?
16 A. No.
17 Q. Any more than you had in 2007?
18 A. No.
19 Q. You have debt, you pay rent, you pay your utilities, you still have no property
20 that’s available to you otherwise; is that correct?
22 Q. Now, we saw Petitioner’s Exhibit 164 and 165, which were your bank
23 statements that we provided in discovery, correct?
24 A. Correct.
25 Q. And if the law is that delinquent child support arrearages are not property and
92
1 not income, is there any other source besides your income and child support
2 arrearages that you’ve been receiving for about a year and a half that you have
3 available to you on a monthly basis?
4 A. No.
5 Q. Nothing else?
6 A. No.
7 Q. No other jobs?
8 A. No.
9 Q. No rich boyfriend?
10 A. No.
11 Q. No bag of gold under the car?
12 A. No.
13 Q. Okay. So in 2015, for the first time in several years, you began receiving
14 almost an additional $1,500 a per month; is that correct?
15 A. I think it was about --
16 Q. Depending on whether there’s a fifth week in the month?
17 A. Yes.
18 Q. And that is money you are receiving by virtue of the wage withholding that
19 we discussed in detail last May?
20 A. Yes.
21 Q. That does not come into your bank account, does it?
22 A. No.
23 Q. How do you receive those delinquent child support payments that are coming
24 in through garnishment? Where do those go?
25 A. They go on a separate card.
93
1 Q. What kind of card?
2 A. A SecuritE Card.
3 Q. What do you do with that card?
4 A. As his funds come in, they load them on, and then the card is sent to me,
5 where I have access to withdraw -- withdraw the funds.
6 Q. Okay. Prior to February of ’15, when you started receiving those, you didn’t
7 have any extra money in your account, did you?
8 A. No.
9 Q. In fact, if the Judge looks at January of ’15, you didn’t have thousands of
10 dollars in your account?
11 A. No.
12 Q. Okay. So your paychecks go into your UMB account?
13 A. Yes.
14 Q. And the delinquent child support that you’re getting goes onto a card?
15 A. Yes.
16 Q. In a given month, which do you use first?
17 A. The card from the child support.
18 Q. So as expenses come in, you use that card until there’s no more money left on
19 it?
20 A. Yes.
21 Q. And then you go back and use your money out of your UMB account?
22 A. Yes.
23 Q. And because you’re getting that extra money, you’re not having to spend all
24 of your wages?
25 A. Yes.
94
1 Q. And over the past 15 months, you’ve got about 2,000 extra in there?
2 A. Yeah.
3 Q. Sometimes more, sometimes less?
4 A. Yes.
5 Q. And that money that is coming in that should have been paid to you years ago
6 also enables you, over the past year and a half that you testified, to help your
7 daughter, your grandkids, your mother, and for a little while one of your sons?
8 A. Yes.
9 Q. Would you be able to do that had you not been receiving that additional
10 money by virtue of the garnishment?
11 A. No, I would not.
12 Q. Do you, without the child support, earn enough money on your own to pay
13 your own bills?
14 A. No.
15 Q. Okay. Now, the Court has already received Respondent’s Exhibit 49. I’m
16 going to ask you to take a look at that. That’s not your average monthly income, is
17 it?
18 A. No.
19 Q. You’re a bus driver?
20 A. Yes.
21 Q. Part of the year, during the regular school year, in the fall and the spring, you
22 earn most of your money?
23 A. Yes.
24 Q. And that is one of four income and expense statements, correct?
25 A. Yes.
95
1 Q. That shows what you earn during the spring and fall semesters when you earn
2 most of your money?
3 A. Yes.
4 Q. Does that accurately reflect what you receive in every month?
5 A. Yes.
6 Q. During -- does that show what you receive in every month during the year?
7 A. No. Huh-uh.
8 Q. So even though he was provided all four income and expense statements, the
9 one he offered is the one that shows the most that you earn, correct?
10 A. Yes.
11 Q. But this does accurately reflect what you earn during the 37 weeks out of the
12 year when school’s in session?
13 A. Yes.
14 Q. Now, you have -- if we take your highest -- highest one --
15 A. Uh-huh.
16 Q. -- when you’re earning your most money --
17 A. Uh-huh.
18 Q. -- your monthly gross wages are about $3,000 a month, correct?
19 A. Uh-huh.
20 Q. Is that correct?
21 A. Yes.
22 Q. That’s not what you bring home, is it?
23 A. No.
24 Q. Are you aware that maintenance isn’t based on gross income like child
25 support? It’s based on what you actually have and what you actually need to spend
96
1 in a month?
2 A. Yes.
3 Q. Have you also set forth on pages 2, 3, and 4 all of your reasonable monthly
4 expenses?
5 A. Yes.
6 Q. And are your reasonable monthly expenses just under 3,000 a month?
7 A. No.
8 Q. Around --
9 A. Yes.
10 Q. -- 2,987?
11 A. Yes.
12 Q. And that doesn’t change? Whether school’s in session, school’s not in
13 session, your expenses are about average in every month?
14 A. Yes.
15 Q. So even if we went on the highest income you earn during the year, you’re
16 just breaking even and only for that portion of the year?
17 A. Yes.
18 Q. What is putting you over, allowing you to save up a little bit and help your
19 family, is the money coming in from him for support from years ago, correct?
20 A. Yes.
21 Q. All right. Now, let’s look at what you actually earn the rest of the year. I’m
22 going to hand you what’s been marked as Respondent’s Exhibit 47 and ask you if
23 you recognize that as your income and expense statement for the eight weeks out of
24 the year when there are school vacations.
25 A. Yes.
97
1 Q. That’s over Christmas break, spring break?
2 A. Uh-huh.
3 Q. The Mondays when you’re off for Martin Luther King, President’s Day?
4 A. Uh-huh.
5 Q. Yes?
6 A. Yes.
7 Q. And those few weeks between when school lets out in the spring and it starts
8 in the fall, before summer school kicks in, correct?
9 A. Correct.
10 Q. And you work summer school to continue the money, right?
11 A. Yeah, whenever.
12 Q. Even when you do that, there’s eight weeks during the year no kids are riding
13 on buses?
14 A. Right.
15 Q. Your expenses stay the same?
16 A. Yes.
17 Q. You earn nothing?
18 A. No.
19 MR. MCKINZY: I want to object to -- she previously testified that she used -
20 - during the summer months, that she obtained additional income doing summer
21 additional projects.
22 COMMISSIONER KIMMINAU: Okay. That’s not an objection. You can
23 cross-examine her --
25 COMMISSIONER KIMMINAU: -- with that information if you care to.
98
2 MS. HESSENFLOW: The summer one’s coming next.
3 COMMISSIONER KIMMINAU: The Court will -- will take note of what
4 the -- the prior testimony has been.
12 Q. I’m going to hand you now what’s been marked as Respondent’s Exhibit 48
13 and ask you if you recognize that as yet another statement of income and expenses.
14 A. Yes.
15 Q. Your expenses again are the same at any given time; is that correct?
16 A. Yes.
17 Q. However, you work summer school, correct?
18 A. Yes.
19 Q. And during those seven weeks, you don’t earn nothing? You earn money?
20 A. Yes.
21 Q. But you don’t earn as much as you do during the school year?
22 A. No.
23 Q. Does Respondent’s Exhibit 48 accurately reflect what you earn when you
24 drive during summer school for the seven weeks during the middle of school?
25 A. Yes.
99
4 COMMISSIONER KIMMINAU: Respondent’s 48 is received.
8 Q. So I’m going to hand you now what’s been marked as Respondent’s Exhibit
9 46 and ask you if you recognize that as your fourth and final income and expense
10 statement?
11 A. Yes.
12 Q. Again, your -- your expenses are the same all year round?
13 A. Uh-huh.
14 Q. This one, however, we added up the weeks when school’s in session full-
15 time?
16 A. Uh-huh.
17 Q. The weeks when no school’s in session, yes?
18 A. Yes.
19 Q. And the weeks that you do summer school?
20 A. Yes.
21 Q. We totaled them all and divided by 52?
22 A. Yes.
23 Q. To get your average, if you average the whole year, what they take out for
24 taxes, what your gross income is, what your net income is, what you’re actually
25 earning on average each month, correct?
100
1 A. Yes.
2 Q. Does Respondent’s Exhibit 47 accurately and most accurately reflect your
3 average monthly income overall in a given year?
4 COMMISSIONER KIMMINAU: You said 47.
5 THE WITNESS: 47.
6 COMMISSIONER KIMMINAU: I think you meant 49.
8 Q. 46, I mean.
9 A. Okay. 46.
10 Q. That’s the -- the best average of all different types of work and not work that
11 you do as a bus driver during the year?
12 A. Yes.
20 Q. Your gross wages per pay period on average for the year are about 550 a
21 month (sic)?
22 A. Yes.
23 Q. And your monthly gross wages are about 2,336 a month?
24 A. Yes.
25 Q. Your average monthly take-home is about 407 per pay period?
101
1 A. Yes.
2 Q. Do you have on average during the school year, when you’re not working at
3 all, or during the summer -- is there any time during the school year where you earn
4 more money that you bring home after taxes to pay your bills than what you make?
5 A. No.
6 Q. You’re always in the red?
7 A. Yes.
8 Q. And that’s working year round, summer, all the other stuff you talked about?
9 A. Yes.
10 Q. If it weren’t for the money you’ve been blessed to receive the past year and a
11 half, would you be able even today to support yourself on your own employment?
12 A. No.
13 Q. Now, I’ve explained to you that child support under Missouri law is not
14 property that you can use and is not income?
15 A. Uh-huh.
17 A. Correct.
18 Q. But we’re human beings and we live in the real world; is that correct?
19 A. Correct.
20 Q. And you’re -- that -- that’s a huge boom to your monthly income, that money
21 that’s coming in from child support?
22 A. Correct.
23 Q. You can’t go back in time and use it back then when you really needed it?
24 A. No.
25 Q. But you’re using it now and in fact you’re still helping your kids with it?
102
1 A. Yes.
2 Q. At present, are you willing to concede that you’re doing okay and you don’t
3 need, right now while that money’s coming in, 200 extra a month?
4 A. Yeah.
5 Q. We’re asking the Court to find that you’re still entitled to it and 200 staying
6 in place would be perfectly fine, correct?
7 A. Right.
8 Q. But in your responsive pleading, you stated that you would be willing and as
9 an alternative, given the current circumstances, to have your maintenance reduced to
10 $1 per month; is that correct?
11 A. Correct.
12 Q. Why on earth would you want a dollar a month? What are you going to do
13 with a dollar? Nothing.
14 A. Nothing.
15 Q. Are you asking the Court not -- if the Court doesn’t leave the 200, are you
16 asking the Court, rather than terminating your maintenance, to enter a dollar for a
17 very specific reason?
18 A. Yes.
19 Q. And what is that?
20 A. Because if he stops working, I can come back.
21 Q. There you go. The only reason you are where you are is because you are now
22 getting money you were supposed to get more than a decade ago?
23 A. Yes.
24 Q. And if he --
25 MS. HESSENFLOW: No -- no offense, sir.
103
2 Q. But in the past, there have been periods of years where he will quit a job
3 where there’s a wage withholding in effect and you won’t get anything?
4 A. Right.
5 Q. And if all of the sudden, that wage withholding for that old child support
6 stops coming in, you’re in trouble?
7 A. Yes.
8 Q. And you want to be able to come back to the Court and address it at that
9 time?
10 A. Yes.
11 Q. Are you therefore asking the Court to find that you have no more property
12 with which to support yourself than you had at the time, given the cost of living
13 differential over 15 years?
14 A. Correct.
15 Q. Still can’t support yourself on your own income?
16 A. Correct.
17 Q. But it is equitable either to leave the maintenance in place or to reduce it to a
18 dollar, given the very unique circumstances and the additional money coming into
19 your household?
20 A. Correct.
21 Q. Now, he also offered your 2015 W-2. I think it was Exhibit 166. And he
22 showed that you made $33,510 that year; is that correct?
23 A. Yes.
24 Q. That’s before they took about $8,000 in taxes, insurance, and other things out,
25 correct?
104
1 A. Correct.
2 Q. So what was available to you to provide for your needs was about $25,441?
3 A. Correct.
4 Q. Divided by 12?
5 A. Oh, yeah.
6 Q. Less than 2,000 a month?
7 A. Yes.
8 Q. He also offered an old Form 14 that showed a decade ago in 2007 your
9 income was 1,600 a month, and he showed based on the one that your income has
10 doubled. Your income hasn’t doubled, has it?
11 A. No.
12 Q. He used the one Form 14 that had the higher amount for those semesters
13 when you were working full-time?
14 A. Right.
15 Q. And that was ten years ago?
16 A. Right.
17 Q. The difference between what you earned then and what you’re earning now is
18 actually only about $700, correct?
19 A. Correct.
20 Q. Which is an increase of only $70 a year over 10 years?
21 A. Correct.
22 Q. Are you asking the Court to find that your expenses are reasonable and that
23 the documents we introduced into evidence adequately reflect what you actually earn,
24 not in gross income, but what you bring home?
25 A. Correct.
105
1 MS. HESSENFLOW: That’s my cross.
2 COMMISSIONER KIMMINAU: Any redirect on the maintenance issue,
3 Mr. McKinzy?
4 MR. MCKINZY: Yes.
5 REDIRECT EXAMINATION BY MR. MCKINZY:
6 Q. Regarding the -- do you recall receiving a -- a lump sum of maintenance
7 payment from the 401(k)?
8 A. Not right off.
9 Q. You don’t? Do you recall receiving a lump sum payment from the 401(k) for
10 back child support in 2006?
11 MS. HESSENFLOW: I’m sorry to interrupt. Are you talking about the
12 QDROs from the pension?
13 MR. MCKINZY: Yes, the --
14 MS. HESSENFLOW: Pension.
15 THE WITNESS: Oh, okay.
16 MR. MCKINZY: Yeah, I’m sorry.
17 MS. HESSENFLOW: I’m sorry, you can ask again.
19 MS. HESSENFLOW: I think she knows what you’re talking about.
21 BY MR. MCKINZY:
22 Q. Do you recall receiving a lump sum payment in 2006 of $17,816.04 from --
23 A. I don’t think I received that much.
24 Q. There’s a affidavit from -- I have to offer it --
25 A. Oh, okay.
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1 MR. MCKINZY: Affidavit from --
2 MS. HESSENFLOW: That affidavit is already in evidence as Respondent’s
3 Exhibit 18 from the hearing on 5/19. I have no objection.
5 MS. HESSENFLOW: There’s also a second affidavit in evidence,
6 Respondent’s 17.
7 MR. MCKINZY: Yes.
8 MS. HESSENFLOW: Would you like to use that as well?
9 MR. MCKINZY: Uh-huh. That’s fine.
10 MS. HESSENFLOW: All right. No objection to either affidavit.
11 COMMISSIONER KIMMINAU: 17 and 18 have already been admitted, so
12 you may ask her questions about it.
15 BY MR. MCKINZY:
16 Q. Did you receive $17,816.04 for back child support in 2006 from the QDRO,
17 back child support from the 401(k) annuity?
18 A. Was that before they deducted taxes?
19 Q. That was the gross payoff. The affidavit states that it was paid out to you.
20 A. But I didn’t get 17,000.
21 Q. Okay. On November -- it states that you were the payee submitted to for the
22 office for payment.
23 A. Uh-huh. But I don’t remember getting 17,000.
24 Q. Okay.
25 A. That’s all I’m saying. It was something paid out to me, but it wasn’t 17,000.
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1 I think it was more like 14.
2 Q. It was for child support -- back child support.
3 A. Is that what that said?
4 Q. Yeah, this affidavit from the custodian of records for -- for the --
5 A. Can I see that again?
6 Q. It states back child support. You were --
7 COMMISSIONER KIMMINAU: Just let her look at it for a minute --
9 COMMISSIONER KIMMINAU: -- Mr. McKinzy.
10 THE WITNESS: Okay. It was paid out, but 17,000, I didn’t get the whole --
11 the whole amount. I got like 14,000.
12 BY MR. MCKINZY:
13 Q. But it was for past due child support?
14 A. According to that document.
15 Q. In addition to that, you also received a lump sum payment in 2006 for what
16 was deemed past due maintenance as well?
17 MS. HESSENFLOW: No objection. I think that’s the one that’s already in
18 as 17.
19 COMMISSIONER KIMMINAU: Which number is that?
20 MR. MCKINZY: That’s -- it would be 133.
21 COMMISSIONER KIMMINAU: And I’m going to mark your prior one,
22 even though it’s in evidence under a different number, Petitioner’s 134.
24 THE WITNESS: And what did you say this one was for?
25 BY MR. MCKINZY:
108
1 Q. It was for past due maintenance that was collected via the 401(k) and annuity
2 that was paid out as past due maintenance. Did you receive that amount -- amount to
3 past due maintenance?
4 A. There’s a amount on here?
5 Q. Yes. It’s on the second page here. Here it is.
6 A. Yeah, I think I got something to that effect.
7 Q. Well, what’s the amount that’s stated?
8 A. Okay. $3,208.42.
9 Q. And that was paid due to what was collected?
10 A. Past due maintenance.
11 Q. Yes. On those two amounts, similar to the credit that you gave for Michael’s
12 emancipation, did you file an affidavit giving credit for what the Court -- do you
13 recall providing an affidavit?
14 A. Well, at the time, it was up to my attorney to -- once everything was
15 separated, then she would do the backup to make sure the Court got credit -- I mean,
16 that you got credit through the Court, so --
17 Q. So the amounts that were paid out to you, you are not aware personally
18 whether or not credit was provided, but you signed an affidavit stating that it was
19 credit of that amount provided for back --
20 A. Well, at the time -- well, at the time, my attorney told me that she had filed
21 the necessary papers and that it was, you know, supposed to have been handled. So
22 other than her doing what she needed to do, I -- I can only answer that, you know,
23 she made me aware.
24 COMMISSIONER KIMMINAU: All right. Just a second, now. What’s --
25 what’s the question?
109
1 MR. MCKINZY: Was credit --
2 COMMISSIONER KIMMINAU: Does she acknowledge --
3 MR. MCKINZY: -- that she received the money and was she aware that she
4 provided credit for on the child support of that amount received.
5 COMMISSIONER KIMMINAU: Okay. I think I know the -- I’ve got her
6 answer. She left it up to her attorney. But I thought the approach you were going to
7 take here was to talk about the maintenance --
8 MR. MCKINZY: That is the maintenance.
9 COMMISSIONER KIMMINAU: -- and then talk about --
11 COMMISSIONER KIMMINAU: -- arrearages owed on either the child
12 support --
14 COMMISSIONER KIMMINAU: -- or the maintenance --
16 COMMISSIONER KIMMINAU: -- as a separate matter.
18 COMMISSIONER KIMMINAU: Okay. I’m okay with doing it however
19 you want, but I thought that was the approach we were going to take.
22 MR. MCKINZY: To abide by that, I have no further questions.
23 COMMISSIONER KIMMINAU: All right. Any then redirect of your
24 client?
25 MS. HESSENFLOW: No, Your Honor.
110
1 COMMISSIONER KIMMINAU: All right. Ma’am, you may step down.
2 Mr. McKinzy, your next witness, who would that be?
3 MR. MCKINZY: That would be myself, I suppose, regarding the
4 maintenance.
5 COMMISSIONER KIMMINAU: All right. Ms. Hessenflow, this morning --
6 and we’ve neglected -- or we haven’t neglected, but you brought up the issue of
7 taking out of turn Mr. McKinzy’s client. Is that still on the table, or what are we
8 going to -- what do you want to do with that?
9 MS. HESSENFLOW: Yes, I have about six questions for her, and --
11 MS. HESSENFLOW: -- they relate to -- now’s fine. Any time is fine.
12 COMMISSIONER KIMMINAU: And then she can stay in the courtroom
13 when we’re -- when she’s released.
15 COMMISSIONER KIMMINAU: So if you want to go get her,
16 Mr. McKinzy, we’ll do her next.
18 COMMISSIONER KIMMINAU: All right, ma’am. Come on up and
19 approach that witness chair, if you would, please. When you get there, just raise your
20 right hand and we’ll swear you in.
22 (Witness sworn.)
23 COMMISSIONER KIMMINAU: All right. Please have a seat. And I’ll
24 remind you the microphone doesn’t amplify, it just records, so --
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1 COMMISSIONER KIMMINAU: -- we’ll need to have you speak up.
2 All right, Ms. Hessenflow?
3 CORRINE M C K I N Z Y, called as a witness in behalf of the
6 Q. Could you state your name for the record, please?
7 A. Corrine (phonetic spelling) J. McKinzy.
8 Q. And are you currently married to Mr. Michael McKinzy, who is present in
9 the courtroom?
10 A. Yes.
11 Q. When did the two of you get married?
12 A. February 2014, on the 14th. I mean, I’m sorry --
13 Q. Valentine’s Day?
14 A. No, the day after, the 15th, I’m sorry.
15 Q. Sure. And the two of you, I presume, live together?
16 A. Yes.
17 Q. Does anybody else live with you in your residence?
18 A. No.
19 Q. Just the two of you?
20 A. Yes.
21 Q. Do you work?
22 A. Yes.
23 Q. Where do you work?
24 A. Macy’s.
25 Q. And what do you do there?
112
1 A. I’m a part-time merchandising.
2 Q. Okay. And when did you start working at Macy’s?
3 A. September of, let’s see, 2016.
4 Q. So about five months ago?
5 A. Yes.
6 Q. And have you received then kind -- you probably got a pay stub towards the
7 end of the year that showed what you’ve earned?
8 A. Yes.
9 Q. How much have you earned, approximately? And I don’t expect a dollar and
10 a penny, but between September and now, about how much did you earn at Macy’s
11 on that year-end pay stub?
12 A. I haven’t done the taxes yet. I’m -- I’m not sure.
13 Q. About how many hours a week do you work?
14 A. I work about 25 hours a week. I work part-time.
15 Q. Okay. And what do you earn per hour?
16 A. 10.
17 Q. So about 250 a week?
18 A. Yes.
19 Q. All right. And prior to that, where did you work? Did you work somewhere
20 else prior -- prior to September?
21 A. Yes, also, in the summer, I work for the Royals stadium. I’m a cashier at the
22 stadium.
23 Q. All right.
24 A. Uh-huh.
25 Q. And about how much did you earn doing that, if you know?
113
1 A. About the same amount, about 10 an hour.
2 Q. And about how many hours did you work over the summer? I know there’s a
3 lot of baseball, but I --
4 A. Yeah, it -- it -- it -- it varies because I only work when they have the baseball
5 games.
6 Q. So was it more or less than Macy’s or pretty comparable?
7 A. About the same.
8 Q. Okay. So $1,000 a month, give or take?
9 A. Yes.
10 Q. And did you do any other -- anything else this year when you worked?
11 A. No.
12 MS. HESSENFLOW: All right. I have no further questions.
13 COMMISSIONER KIMMINAU: Mr. McKinzy, did you have questions of
14 your wife?
15 MR. MCKINZY: Yes, I do.
16 CROSS-EXAMINATION BY MR. MCKINZY:
17 Q. Do you know when was the first time that you resided in the same residence
18 prior to our marriage -- how much of a period that we resided together when we first
19 resided together? What do you recall?
20 A. Seven years.
21 Q. Approximately what year would that be?
22 A. That’d be about 2006, 2007.
23 Q. Do you have a exact date in 2006, approximate day around --
24 A. January, I think -- I believe, yeah.
25 MR. MCKINZY: During that period, were -- do you recall whether or not I
114
1 was employed?
2 MS. HESSENFLOW: Objection, Your Honor. First of all, he can -- he’s
3 asking the witness about income information about prior years that I asked for tax
4 returns and other things, and I object to that. He’s kind of going around about here.
5 If he wants to ask if she knows what his current income is, which is what the Court
6 needs, that’s fine. Secondly, income from years ago is irrelevant to maintenance
7 determinations today. Those are my two objections.
8 COMMISSIONER KIMMINAU: Mr. McKinzy, I could care not a wit about
9 what you made in 2007 when it comes to the maintenance issue. The order was in
10 place, whatever it was. And so I’m really focusing on what are the current incomes
11 now.
13 COMMISSIONER KIMMINAU: So I’m going to sustain the objection.
15 COMMISSIONER KIMMINAU: If you want to ask about 2015 and ’16,
16 you -- you’re free to do that.
18 COMMISSIONER KIMMINAU: But not -- not prior to that, all right?
19 MR. MCKINZY: Okay. I have no further questions.
20 COMMISSIONER KIMMINAU: All right. Can this witness be released?
21 MS. HESSENFLOW: Your Honor, you did -- have issued an order sealing
22 the case --
23 COMMISSIONER KIMMINAU: Uh-huh.
24 MS. HESSENFLOW: -- but I have no objection to her staying.
25 COMMISSIONER KIMMINAU: All right. So you may stay in the
115
1 courtroom if you so desire. And we’ll move on now to -- does that take care of the
2 evidence, then, based on the maintenance issue that’s in place?
3 MS. HESSENFLOW: I have no further evidence regarding maintenance.
4 COMMISSIONER KIMMINAU: Right. And I -- I assumed you did not,
5 unless you want to testify on your own about --
6 MR. MCKINZY: I’ll make -- testify.
7 COMMISSIONER KIMMINAU: All right. Then reassume the witness
8 chair, and remember that you’re still under oath, Mr. McKinzy.
10 PETITIONER, being duly sworn, testified as follows:
11 DIRECT TESTIMONY BY MR. MCKINZY:
12 MR. MCKINZY: Regarding maintenance or current income to provide
13 maintenance, due to my current obligations of -- of being currently married and
14 having a current spouse and having the responsibility of providing housing and
15 necessary for the necessity of two occupants or two members of a household, it
16 would be an unreasonable -- I would be unable -- I would undergo a financial
17 hardship to be required to continue to provide for a previous wife that’s two
18 marriages removed. And due to the demonstrated ability that she has shown, gross
19 income in excess of $30,000, approximately $33,000, she has demonstrated the
20 furtherance of -- no need for further support from me. Given also the testimony that
21 she’s provided that she’s -- in excess of providing for herself, she’s chosen to provide
22 for a emancipated -- our emancipated daughter and her two children and have
23 provided support for her out-of-state mother in -- in the approximate amount of 2 to
24 $400 for medical expense, in addition to providing the initial expense that is incurred
25 with additional members of a household. Therefore, I believe it has demonstrated her
116
1 further -- no further need for financial support of maintenance and my inability to
2 provide support due to my current financial status of being currently employed and
3 providing support for my current wife.
4 COMMISSIONER KIMMINAU: Keep your seat.
6 COMMISSIONER KIMMINAU: Questions, Mr. Hessenflow?
8 CROSS-EXAMINATION BY MS. HESSENFLOW:
9 Q. You offered into evidence an old Form 14, Exhibit 102, showing the income
10 that both of you had during the 2007 child support modification as evidence of what
11 the income was as of the last order; is that correct?
12 A. Yes, I believe so.
13 Q. Was your income ten years ago $4,995 a month?
14 A. No, it was not.
15 Q. Is that what was on the exhibit that you offered into evidence?
16 A. That was what’s on the exhibit. I was currently unemployed. I had been
17 unemployed since December of 2005, all the way through May of 2008, which I
18 began employment at IBC, Interstate Bakery, as a maintenance engineer.
19 Q. Is that a no, your income then wasn’t what it shows on the exhibit you
20 offered?
22 Q. All right. I’m going to hand you what’s been marked as Respondent’s
23 Exhibit 42 and ask you if you recognize that as copies of the pay stubs that you
24 provided in discovery.
25 A. Yes.
117
1 Q. You were working -- you started in early 2015 working for Hillshire Brands
2 through UltiPro, but presently you work for Hillshire Brands through Tyson; is that
3 correct?
4 A. No, I -- I was hired directly by Hillshire. UltiPro is just their payroll.
5 Q. So in the discovery documents that you provided, it shows what you were
6 earning the first half of the year of 2016, as well as what you were earning in -- those
7 are the -- those are the stubs you gave me, right?
8 A. Yes, those are the stubs I was provided.
9 Q. Did you in fact get a 50 cent an hour raise when you switched over to Tyson?
10 A. I was hired directly by Tyson.
11 Q. I asked if you got more money.
12 A. I was -- yeah, I got an increase, but I didn’t switch -- I was employed directly
13 by Tyson from --
14 Q. You’re earning a little bit more money now than you were even on the pay
15 stubs you gave me earlier this year?
16 A. Yes.
17 Q. All right.
18 MS. HESSENFLOW: I offer Respondent’s Exhibit 42.
19 COMMISSIONER KIMMINAU: There was no objection to 42, correct?
20 MR. MCKINZY: No. No.
21 COMMISSIONER KIMMINAU: All right. 42 has been received.
118
1 ask you if you recognize that as the last of the pay stubs in the stack you gave me, the
2 one for pay period starting 6/5/16 and pay period ending 6/11/2016.
3 A. Yes, it appears to be.
4 Q. So when we exchanged our discovery, we were 23 weeks into the year?
5 A. Yes, it appears, yeah, approximately.
6 Q. So this doesn’t show what you earned all year, this just shows what you
7 earned as of the time you gave me your pay stubs, correct?
8 A. What I was able to provide at that time, yes.
9 Q. Right. And as of week 23, if you look down at the bottom, you had year-to-
10 date gross income of $27,175.79; is that correct?
11 A. No, it says year-to-date -- well, I guess --
12 Q. Right.
13 A. Okay. Gross, well, it doesn’t break down gross. I haven’t added it up, but I
14 would -- I would estimate that to be accurate.
15 Q. And if you divide by that -- by the 23 pay periods, because you get paid
16 weekly, right?
17 A. Yes, I get paid weekly.
18 Q. That’s $1,181.56 per week? Now, obviously, some weeks you got more,
19 some weeks you got less. But if you divide your year-to-date by the 23 weeks, that’s
20 the average, correct?
21 A. That’s the average. But, like I said, I am not -- we currently are on a -- where
22 the hours fluctuate.
23 Q. Sure. Sometimes you earn more, sometimes you earn less. This is an
24 average of that whole --
25 A. Yes.
119
1 Q. -- first six months that you gave me stubs for --
2 A. Yes.
3 Q. -- correct? And if we take that 1,181 times 52 weeks, to extrapolate what you
4 are scheduled to earn based on the first six months, that would be $61,441.12?
5 A. But I did not make that much, because I do not consistently --
6 Q. Have you provided me updated pay stubs?
7 A. Yes, I provided the W-2 -- my W-2, I -- I -- I submitted into evidence or I
8 intend to submit into evidence what the actual income for the 2015 is.
9 Q. And you provided that for me in discovery and updated that instead of having
10 me rely on the pay stubs you gave me last summer?
11 A. No, I haven’t gotten my W-2 for 2016 as of yet.
12 Q. It’s going to be hard for you to introduce it into evidence, isn’t it?
13 A. Yes.
14 MS. HESSENFLOW: Your Honor, at this time, I’d ask to strike the
15 testimony about his income being different for the second half of 2016 than it was on
16 the pay stubs that he provided. Again, I requested pay stubs and tax returns. I’m
17 having to go based upon what he gave me. Now he’s saying his income is different.
18 COMMISSIONER KIMMINAU: The Court will take note of what the pay
19 stubs actually show, and I’ll do the math in terms that I can appreciate. So to that
20 extent, the objection is sustained.
22 Q. All right. So the Court can obviously see the math, see what you earned,
23 divide by the number of weeks, and get an estimate as to what you might be earning
24 during the year.
25 MS. HESSENFLOW: I’m going to go ahead and offer Respondent’s Exhibit
120
1 58 as an aid to the Court for the Court to make its own conclusions about the accurate
2 monthly income.
3 COMMISSIONER KIMMINAU: Any objection to 58, Mr. McKinzy?
10 and ask you if you recognize that as your year-end 2015 pay stub that you gave me as
11 part of the discovery.
12 COMMISSIONER KIMMINAU: Well, let’s wait until --
13 MS. HESSENFLOW: Sure.
14 COMMISSIONER KIMMINAU: -- it’s admitted.
15 MR. MCKINZY: Yes, it appears to be.
16 MS. HESSENFLOW: Okay. Offer Respondent’s Exhibit 53.
17 COMMISSIONER KIMMINAU: Any objection to 53, Mr. McKinzy?
23 Q. And you didn’t work the whole year of 2015 there; you started a little bit into
24 the year, correct?
121
1 Q. So you only worked there for 33 weeks? The first 19 weeks of the year, you
2 didn’t work there, correct?
4 Q. So that $44,641 is for the 33 weeks that you worked there. And if we divide
5 that out, it’s about 1,352.77 a month (sic), correct?
6 A. That’s about, yes, but, once again, I stated the fluctuation of work. You’re
7 not given the same amount of 40 hours. Sometimes you -- you work less than that
8 due to availability of work.
9 Q. Okay. But so far in the documents that you’ve provided in this job, you are
10 earning an average in 2015 of 5,800 a month and an average in 2016, at least as of
11 the middle of the summer, of about 5,120 per month, according to your own
12 documents?
13 A. I wouldn’t -- I don’t think that extrapolates or explains that. I provided my
14 W-2 or the last statement of what the actual income was for, so there’s no need for --
15 Q. Is this not your year-end statement?
16 A. It is the year-end statement, and it shows actual income for a total of $44,641.
17 Q. Okay. And that is for 33 weeks out of the year, correct?
18 A. Yes.
19 MS. HESSENFLOW: Okay. I’m going to offer 53 as an aid to the Court so
20 that the Court can make its own determinations about the earning capacity.
21 COMMISSIONER KIMMINAU: 53 has already been received.
23 Q. Now, it shows that you earned --
24 COMMISSIONER KIMMINAU: But I don’t think I have a copy. Well, I do
25 have a copy. No, that’s 58.
122
1 MS. HESSENFLOW: There should be one in the notebook too, but here’s
2 one.
3 COMMISSIONER KIMMINAU: All right. I have it if it’s in the notebook.
5 Q. Where -- where else did you work in 2015?
6 A. I was working through a temporary -- temp service.
7 Q. So in addition to that 44,000, you had additional income through the temp
8 service, correct?
9 A. Yeah, approximately $10,000.
10 Q. Okay. And that would match the figure on that Social Security you showed
11 me and then didn’t offer into evidence?
12 A. It was offered, but it was not to be accepted, though.
13 Q. So you earned more than what’s even showing on that pay stub in 2015?
14 A. Yes, for the year.
15 Q. Do you have any other sources of income?
16 A. No.
17 Q. Do you have any other businesses or anything else that you do to earn
18 money?
19 A. I have businesses, but they are not currently providing any income. In fact,
20 they are providing out -- out -- it’s a lag. I’m trying to maintain them -- just the
21 operational costs.
22 MS. HESSENFLOW: Your Honor, strike as nonresponsive. The question
23 was do you do anything else or have any other businesses that provide you with
24 income.
25 COMMISSIONER KIMMINAU: The prior answer is struck. Please answer
123
1 the question --
2 MR. MCKINZY: No.
3 COMMISSIONER KIMMINAU: -- if you would.
6 ask you if you recognize that as a copy with some additions of your income and
7 expense statement.
9 Q. And on page 3, do you show that your average expenses, monthly expenses,
10 are about $3,788?
11 A. Yes.
12 Q. Did you include in there the expenses for the safari and the note to the Buick
13 under automobiles?
14 A. Where is automobiles?
15 Q. I’ll take that off. In that 3,788, do you include --
16 COMMISSIONER KIMMINAU: Just a second, Ms. Hessenflow.
17 MS. HESSENFLOW: Uh-huh.
18 COMMISSIONER KIMMINAU: I’ll ask you to do the same thing as I asked
19 Mr. McKinzy. Please offer the exhibit before you have him testify from it.
21 COMMISSIONER KIMMINAU: Is there any objection to me receiving 60,
22 Mr. McKinzy?
23 MR. MCKINZY: No, I do not.
24 COMMISSIONER KIMMINAU: All right. Respondent’s 60 is received,
25 and now you may ask your questions.
124
4 Q. In calculating your monthly expenses, do you add in the $200 in maintenance
5 you’re paying as included in that 3,788?
6 A. I don’t believe I did.
7 Q. Can you look at the top of page 3, under maintenance or alimony paid by me
8 to other persons, $200? So 3,788 are the expenses -- is the maintenance you pay her,
9 correct? You included that on your statement?
10 A. Where are you reflecting that at? Where --
11 Q. Page 3, third line down, line I.
12 A. Okay. It is crossed through, yes.
13 Q. And in determining your take-home pay, you took out the 238 per week for a
14 little over 1,200 a month you’re paying in child support, on page 1? Under others?
15 A. Okay. Yes. Okay.
16 Q. So in showing what your take-home pay that’s available to assist in
17 maintenance, you’ve already taken her child support out on the front side out of your
18 income, correct?
19 A. I completed the form to the best of my ability. It stated the child support, yes.
20 Q. And in determining your expenses, you added in the maintenance that you
21 pay on that side, correct?
22 A. Yes.
23 Q. Even at 3,788, without any consideration for your spouse’s income, is 3,788
24 less than 5,862 or 5,120 per month, if the Court uses the figures on your 2015 and
25 2016 pay stubs?
125
1 A. It would appear to be less.
2 Q. So you would have extra even if I don’t pick any of your expenses apart,
3 leave the maintenance in, and leave the child support as a deduction from your
4 income? You’ve got extra?
5 A. I have extra to provide for my household, yes.
6 Q. You also have a wife who earns between 1,000 and 1,250 a month, depending
7 upon whether there’s a fifth week, and that -- her money comes in and you guys live
8 as a couple and share groceries, share meals, share expenses?
9 A. Yes, that is correct.
10 Q. Okay.
11 A. I think she testified it was around 1,000. I don’t think she testified 1,200.
12 Q. Around 250 a week?
13 A. Okay.
15 A. She did testify to 250.
16 Q. And that’s on top of the income you earned that’s already enough to cover all
17 of your expenses and still pay her 200?
18 A. That would cover the expenses, yes.
19 MS. HESSENFLOW: All right. No further questions about maintenance.
20 COMMISSIONER KIMMINAU: All right. Mr. McKinzy, anything further
21 about the maintenance that -- based on the questions of Ms. Hessenflow?
22 FURTHER TESTIMONY BY MR. MCKINZY:
23 MR. MCKINZY: I would just reflect that the expenses that were given were
24 based on expenses that were incurred and that the anticipation of continuing to
25 provide support over a 14-year period from the time of divorce was not ever deemed
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1 to be expected.
2 COMMISSIONER KIMMINAU: Anything else?
3 MR. MCKINZY: No, that’s it.
4 COMMISSIONER KIMMINAU: You may step down.
5 Does that conclude the evidence, then, from both sides regarding the
6 maintenance issue?
7 MS. HESSENFLOW: No further evidence from Respondent.
8 COMMISSIONER KIMMINAU: How about you, Mr. McKinzy?
9 MR. MCKINZY: Not regarding maintenance.
10 COMMISSIONER KIMMINAU: All right. So now we’re on to arrearages,
11 correct?
13 COMMISSIONER KIMMINAU: That’s the other element of your motion.
15 COMMISSIONER KIMMINAU: So let’s start with you as the Movant in
16 this case, and we’ll talk about arrearages, okay?
18 COMMISSIONER KIMMINAU: So are you going to testify or do you --
19 MR. MCKINZY: I’d like to call --
20 COMMISSIONER KIMMINAU: -- have documents or --
21 MR. MCKINZY: -- I’d like to call --
22 COMMISSIONER KIMMINAU: -- recall Ms. Gaston?
24 COMMISSIONER KIMMINAU: All right, Ms. Gaston.
25 MS. HESSENFLOW: And, again, this is maintenance arrearages, Your
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1 Honor, not --
2 MR. MCKINZY: No, we’re in child support. We just closed --
3 MS. HESSENFLOW: He didn’t plead for determination -- okay.
4 COMMISSIONER KIMMINAU: I think -- I thought it was both.
5 MS. HESSENFLOW: He wanted a determination that he owed no more
6 maintenance and owed no more child support. He didn’t plead to calculate and
7 determine what, if anything, is owed and what that figure is, but --
8 COMMISSIONER KIMMINAU: Is that right?
9 MR. MCKINZY: No, I was -- the motions to calculate the child support
10 obligation of --
11 COMMISSIONER KIMMINAU: I recall back in May when we had our --
12 MR. MCKINZY: -- of no -- owes no arrearages. For that to be determined,
13 you have to calculate for -- for it to be --
14 COMMISSIONER KIMMINAU: I -- I understood back in May when we did
15 that and determined a range of arrearage, based on that testimony, that it included
16 more than just maintenance.
17 MS. HESSENFLOW: Yes, it did.
18 COMMISSIONER KIMMINAU: All right. Well, I’m going to -- I’m going
19 to allow --
20 MS. HESSENFLOW: All right.
21 COMMISSIONER KIMMINAU: -- child support and -- and maintenance.
22 So, Ms. Gaston, if you would resume the witness chair, and, again, for about
23 the sixth time today, you’re still under oath.
25 COMMISSIONER KIMMINAU: All right. Mr. McKinzy, you may
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1 proceed.
3 COMMISSIONER KIMMINAU: To the extent that we’re talking about
4 child support arrearages, unless it’s already been determined by a different court
5 order, you know, anything moving forward from that, I -- I’m willing to take. If
6 there’s been no prior determination of arrearage, then it’s open, all right?
8 COMMISSIONER KIMMINAU: But I don’t want to rehash what other
9 Judges have found regarding any alleged arrearage.
10 MR. MCKINZY: Well, this is the -- this is the first hearing from the -- since
11 the original divorce that’s --
13 MR. MCKINZY: -- that’s been held.
15 MS. HESSENFLOW: Your Honor, I’m going to object to Petitioner’s 121.
16 It is a calculation from 2002 to 2007 in the old administrative case that has been
17 closed since 2007, was consolidated into the divorce case, and all the payments and
18 arrearages owed at that time were transferred to the divorce case. There are no active
19 payments, arrearages, anything owed in the administrative case. We need to get over
20 to the divorce to find out what -- so I’m going to object to going back in to stuff prior
21 to the consolidation.
22 COMMISSIONER KIMMINAU: And I would agree, as long as that’s what
23 occurred.
24 Mr. McKinzy, is that what happened in the divorce, they -- they -- they found
25 in the divorce decree what the arrearages were that had accumulated under the
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2 MR. MCKINZY: There was -- the administrative order was what the child
3 support in the divorce was based on. There was no determination by the Court of
4 child support.
5 COMMISSIONER KIMMINAU: Does somebody have a copy of the
6 divorce decree?
7 MS. HESSENFLOW: Your Honor, I do, but it -- it -- the divorce decree does
8 not say a set amount of arrearages. It incorporates the monthly prospective child
9 support amount from the administrative order. It is the later 2008 motion to
10 consolidate that consolidates the two and establishes all the payments to be recorded
11 in the divorce case. And all of that has already been admitted in May.
12 COMMISSIONER KIMMINAU: I have Exhibit 1, which is from May,
13 findings and recommendations, judgment, and decree of divorce from 2002.
14 MR. MCKINZY: Yes, I have it right here.
15 COMMISSIONER KIMMINAU: All right. And then when was the
17 MS. HESSENFLOW: The administrative order was earlier that year, Your
18 Honor.
19 COMMISSIONER KIMMINAU: Okay. And but you’re saying the divorce
20 decree doesn’t reflect --
21 MR. MCKINZY: The divorce decree does -- did not determine --
22 COMMISSIONER KIMMINAU: What the divorce decree says is that, “The
23 Court finds there is currently an order for child support in place under the
24 administrative order, showing a presumed amount of $1,165 per month. The Court
25 finds that the order is not rebutted, is unjust, or inappropriate, and therefore the
130
1 correct amount of child support to be paid going forward.” Do you agree with that
2 much?
3 MR. MCKINZY: I agree that’s what the --
5 MR. MCKINZY: -- the order states.
6 COMMISSIONER KIMMINAU: So when we -- when we’re talking about
7 arrearage, where is the first evidence of what some other --
8 MR. MCKINZY: There --
9 COMMISSIONER KIMMINAU: -- entity found to be in arrearage?
10 MR. MCKINZY: -- there is no --
13 COMMISSIONER KIMMINAU: Ms. Hessenflow, you said that’s already
14 been incorporated somewhere?
15 MS. HESSENFLOW: Yes. Your Honor, I offered all of that in on the 19th.
16 I can offer it again.
17 COMMISSIONER KIMMINAU: Well, I -- just point me to it so that I can
18 address what he’s attempting to do and address your objection.
19 MS. HESSENFLOW: You know, I’ll -- I’ll withdraw the objection. I’ll just
20 let him do his stuff. Maybe I should have gone first.
21 Here you are, sir.
22 I -- I object to this. I don’t know what it is, but --
23 COMMISSIONER KIMMINAU: Hang on just a --
24 MS. HESSENFLOW: I haven’t seen it. It doesn’t have a foundation. I don’t
25 know what it is. It’s not a payment history report or an official record of the Court, I
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1 know that.
2 COMMISSIONER KIMMINAU: What is it, Mr. McKinzy, that you have?
3 MR. MCKINZY: It’s what I was shown at the time that the order of what my
4 child support would be if -- as the kids are emancipated. This is what induced me to
5 sign a voluntary child support order.
6 COMMISSIONER KIMMINAU: And why don’t you -- I doubt -- I don’t
7 know, but I doubt this witness knows what your -- what you’ve -- did you calculate
8 this?
9 MR. MCKINZY: No, this is a -- this is what I was shown per child, what it
10 would be at their 18th -- when I went down there, they said this is what -- I was
11 voluntarily paying her $1,600 a month. They came and said 1,165 and 291.25 a
12 month and they counted that spreadsheet, “This is what you would pay out if you
13 voluntary -- you and her had an agreement. This is what it would look like, the
14 emancipation of each of the children.”
15 COMMISSIONER KIMMINAU: Okay. Here’s the deal. I wasn’t present
16 for what prior Judges have done.
17 MR. MCKINZY: This wasn’t a Judge. This was the State.
18 COMMISSIONER KIMMINAU: Yeah, I don’t care.
20 COMMISSIONER KIMMINAU: State or Judge. State order is just as
21 effective as a Judge’s order if it’s been approved, and apparently the ones I’ve seen
22 have been. When there’s a amount of support for four children and it says one lump
23 sum for four children, that lump sum remains in place no matter how many children
24 are emancipated until it’s changed by order of the Court.
25 MR. MCKINZY: And what I was -- what I’m trying to get to the Court’s
132
1 attention is that the -- there’s three orders on file in this case or between the parties.
2 There was a voluntary order that Ms. Gaston went down there and initiated.
3 COMMISSIONER KIMMINAU: You’re talking about the administrative
4 order?
5 MR. MCKINZY: The administrative -- well, no, before that, there was a
6 voluntary order that they converted to an administrative order, because --
8 MR. MCKINZY: -- it was --
9 COMMISSIONER KIMMINAU: And then there was the divorce and then
10 there was the modification.
11 MR. MCKINZY: Which are being reflected on the administrative order,
12 which --
13 COMMISSIONER KIMMINAU: Do what you’ve got to do and --
15 COMMISSIONER KIMMINAU: -- let’s see where we go with it.
16 WITNESS CARLETHA GASTON RESUMED THE STAND.
17 REDIRECT EXAMINATION RESUMED BY MR. MCKINZY:
18 Q. In -- beginning in July of 2002, you did receive the lump sum of 1,165; do
19 you recall -- when the child support order was put into place? The first month was
20 July of 2002. You were paid 1,165?
21 A. I’m not sure which month, whether it was July or August.
22 COMMISSIONER KIMMINAU: Would it be better, Mr. McKinzy --
23 MR. MCKINZY: Here it is.
24 COMMISSIONER KIMMINAU: -- and I don’t want to tell you how to do
25 your case.
133
2 COMMISSIONER KIMMINAU: If you presented this as opposed to trying
3 to get her to agree with it?
4 MR. MCKINZY: Okay. This is Exhibit I guess 169 and 168. I offer as the
5 current as of today and the original administrative case, which the original payments
6 were paid.
7 MS. HESSENFLOW: I have -- I have no objection. That case has been
8 closed for ten years, but if you want to show what was owed when it was closed,
9 that’s fine.
10 BY MR. MCKINZY:
11 Q. If you go back at the beginning -- let me take you to a page.
12 COMMISSIONER KIMMINAU: Well, for the record, if you would,
13 Mr. McKinzy, tell me what the exhibit is.
14 MR. MCKINZY: This is an exhibit that I obtained from the Court of the total
15 pay history for the administrative --
16 COMMISSIONER KIMMINAU: From what date to what date?
17 MR. MCKINZY: 2017 -- 2002 to -- 2005 to 2007.
18 COMMISSIONER KIMMINAU: From 2002 to 2007?
19 MR. MCKINZY: Yes, December of 2007.
20 COMMISSIONER KIMMINAU: All right. So a five-year period?
21 MR. MCKINZY: Yes, that’s the --
22 COMMISSIONER KIMMINAU: And that purports to show what the
23 arrearage is in 2007?
24 MR. MCKINZY: That’s the -- that’s the period that all the -- by that time, all
25 the kids were emancipated.
134
1 COMMISSIONER KIMMINAU: Go ahead and proceed.
2 BY MR. MCKINZY:
3 Q. Does it show a 2007 payment of 1,165 and for August 2007 a payment of
4 1,165?
5 A. Are we talking about 2007 or 2002?
6 Q. 2002, I’m sorry.
7 A. Okay. I see a 7 -- yeah, 7, 1,165.
8 Q. And that was for July?
9 A. July of 2002.
10 Q. And August of 2002?
11 A. 1,165.
12 Q. You didn’t receive those payments? That was the beginning of the child
13 support and you did receive payments in that amount --
14 A. Yes, I guess so.
15 Q. -- for each of those?
16 A. Yes.
17 Q. Were there -- was that considered full payment of child support for both of --
18 all three of those, 1,165 per month?
19 A. Yeah.
20 Q. And that was --
21 A. 1,165 --
22 Q. -- and that covered --
23 A. -- for 7, 8, 9.
24 Q. -- yeah, that covered full payments for each of those months?
25 A. Yes.
135
1 Q. There was no arrearage in each of those months because the payment was
2 received?
3 A. None that I know of.
4 Q. Okay.
5 MR. MCKINZY: I guess that would be --
6 MS. HESSENFLOW: I have no objection.
7 MR. MCKINZY: -- 110.
8 MS. HESSENFLOW: I -- I don’t think it’s relevant, but --
9 COMMISSIONER KIMMINAU: What number are we on now?
10 MR. MCKINZY: It’s going to be 110.
11 COMMISSIONER KIMMINAU: What’s -- what was the prior one you had
12 her looking at?
13 MR. MCKINZY: Oh, 169.
14 COMMISSIONER KIMMINAU: And that was offered and received, I
15 believe.
17 COMMISSIONER KIMMINAU: And the new one you have is 110?
18 MR. MCKINZY: Pay statement was 121.
19 COMMISSIONER KIMMINAU: 121, as I recall, was objected to.
20 MS. HESSENFLOW: Yeah, I have no idea what that is. There’s no
21 foundation. It’s not --
22 COMMISSIONER KIMMINAU: What is it?
23 MS. HESSENFLOW: -- a court record.
24 MR. MCKINZY: This is what I was given when I --
25 MS. HESSENFLOW: What somebody gave him when he went to Child
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1 Support.
2 COMMISSIONER KIMMINAU: Well, that’s based on hearsay, then.
3 That’s -- that’s not going to be admitted.
5 COMMISSIONER KIMMINAU: You have another one, 110, you said?
6 MR. MCKINZY: Yeah, 110 is first withholding order.
7 COMMISSIONER KIMMINAU: And did you say you had an objection to
8 that one or not, Ms. Hessenflow?
9 MS. HESSENFLOW: No, no objection.
10 COMMISSIONER KIMMINAU: All right. Then -- I’m sorry, 110 is
11 received.
15 BY MR. MCKINZY:
16 Q. That’s dated September 2002?
17 A. Uh-huh. 9/20/02.
18 Q. 9/20/02. And is the withholding order that was produced -- do you see if
19 there was an arrearage as of September 2002? Does it reflect an arrearage that was --
20 A. No, I don’t see any. It just shows what you were ordered to pay.
21 Q. When it says right here past due.
22 A. It says in medical support and spousal support.
23 Q. The 291 monthly past due support due. Right here.
24 A. 291.25 monthly and past due support.
25 Q. But in that September 2002, there was no arrearage due? You had received
137
1 all your child support for those months, you’ve testified?
2 A. 7, 8, and 9?
3 Q. Yes.
4 A. Uh-huh.
5 Q. You did receive full payment?
6 A. Yeah.
7 Q. So it shouldn’t reflect as of that date arrearage? Since the -- the establishing
8 order was establishing in July and you had received three payments as of July,
9 August and September, of 1,165 total child support?
10 A. It wouldn’t have showed it.
11 Q. So you had received all full payment for child support --
12 A. Three.
13 Q. -- for those three months?
14 A. Uh-huh.
15 Q. There shouldn’t have been an --
16 A. Yes.
17 Q. -- arrearage as of September?
18 A. I didn’t see any.
19 Q. Okay. Because you had received full payment for those --
20 A. For those three months.
21 Q. If there was an arrearage created going forward per month, would you expect
22 that to increase per month if it was not due? If it was 291 arrearage as of September,
23 going forward, would you expect that arrearage to continue forward?
24 A. I’m not --
25 MS. HESSENFLOW: Your Honor, I’m going to object.
138
1 THE WITNESS: -- I don’t understand.
2 MS. HESSENFLOW: It calls for speculation. It’s irrelevant what he -- what
3 -- I believe the competing motions are is to determine what is owed in past due child
4 support and maintenance, if anything, which this is showing the total owed, the total
5 paid, and what we believe the evidence is as to what is still owed. And that’s -- that’s
6 it. That’s all the task that we have here, not who gave him stuff at child support, not
7 what she thinks arrearages might be. This is really a numbers --
8 MR. MCKINZY: Yes, and it’s --
9 MS. HESSENFLOW: -- a numbers business here.
10 MR. MCKINZY: -- and it’s a numbers business and nature that first the child
11 support was established based on administrative order that was in effect prior to the
12 divorce proceeding. There was -- there has not been any other modification
13 regarding -- in -- in court as far as modification -- other than today, in a court
14 hearing. So the original child support was based on the original administrative order
15 that was in effect as of July 2002. So my argument is that there was a fabricated past
16 due amount incorporated going forward.
17 COMMISSIONER KIMMINAU: Again, you’re asking me to go back 15
18 years --
19 MR. MCKINZY: Well, I’m --
20 COMMISSIONER KIMMINAU: -- and determine that the amount ordered
21 by the Court was wrong?
22 MR. MCKINZY: -- well, that the original -- if everything is based on an
23 administrative order that was put in --
24 COMMISSIONER KIMMINAU: The Court very clearly found in your
25 divorce, Mr. McKinzy, that the prior administrative order was found to be unrebutted
139
1 and -- and just and appropriate and nothing wrong with it, so they ordered that in
2 your divorce decree, and that’s the order that went forward.
3 MR. MCKINZY: Right. And that’s the only order that’s been in effect since
4 December of 2007. There is no other order that was consolidated. Everything was
5 based on the administrative order.
6 COMMISSIONER KIMMINAU: Well, Ms. Hessenflow is correct in that
7 this is a mathematical exercise. It’s showing what order was entered when, what
8 payments have been made since, what, if anything, is due and owing. It’s that
9 simple.
11 COMMISSIONER KIMMINAU: And I know it’s more complicated than
12 that, but that’s the methodology. Opinions about -- or those kinds of things have no
13 place in -- in this particular part of the exercise, because we need to show proof of
14 what the order was, what was paid or what was not paid. And it’s -- it’s -- that’s
15 what I’m looking for.
17 COMMISSIONER KIMMINAU: All right? So let’s stick with the orders,
18 let’s stick with what’s been paid since, when it was modified, what changed, and
19 what’s owed now.
21 COMMISSIONER KIMMINAU: Okay?
22 MR. MCKINZY: This has been accepted?
23 COMMISSIONER KIMMINAU: Yes. This is 169, which had been
24 previously admitted.
140
1 MS. HESSENFLOW: Yes, fine.
2 COMMISSIONER KIMMINAU: And if -- if I read this correctly --
3 MR. MCKINZY: There’s three orders.
4 COMMISSIONER KIMMINAU: -- this shows for the period ending -- well,
5 what does this show?
6 MR. MCKINZY: This shows that as of the date that all kids were
7 emancipated, I had a zero arrearage.
8 COMMISSIONER KIMMINAU: Not the way I read it. This shows as of the
9 December 2007 date, right? Is that when the emancipation occurred of the first
10 three?
11 MR. MCKINZY: No.
12 COMMISSIONER KIMMINAU: What was the date?
13 MR. MCKINZY: The emancipation --
14 COMMISSIONER KIMMINAU: I thought it was December 12 --
15 MR. MCKINZY: -- by operational --
16 COMMISSIONER KIMMINAU: -- 2007.
17 MR. MCKINZY: -- well, they had been emancipated by the administrative
18 process. I have letters to that effect that Barbara was emancipated as of December
19 2007.
20 MS. HESSENFLOW: You’re right, Judge. We’ll get to it.
21 COMMISSIONER KIMMINAU: This shows in December of 2007, there
22 was an arrearage in excess of $36,000.
23 MS. HESSENFLOW: And then it was consolidated and that arrearage was
24 transferred to the divorce printout, and the future payments and amounts owed
25 respectively are reflected on the second printout in the divorce case.
141
1 COMMISSIONER KIMMINAU: All right. Go ahead, Mr. McKinzy.
2 BY MR. MCKINZY:
3 Q. On what dates were each of the minor children in this proceeding
4 emancipated?
5 MS. HESSENFLOW: Objection, Your Honor. Judicially determined, asked,
6 answered.
7 COMMISSIONER KIMMINAU: Yeah, we went through that this morning
8 as a preliminary matter. Remember when you took the stand and we looked at those
9 orders?
12 BY MR. MCKINZY:
13 Q. So Exhibit 36 -- 136, from the administrative --
14 MS. HESSENFLOW: Okay. I have no objection to this. It’s an accurate
15 exhibit, but I don’t think it means what you think it does, so I’ll let you inquire, and I
16 may have to pop in there and object.
17 COMMISSIONER KIMMINAU: What number are we on?
18 MR. MCKINZY: 136.
19 BY MR. MCKINZY:
20 Q. Would you read for the Court what the letter --
21 COMMISSIONER KIMMINAU: Somebody identify what it is.
22 MR. MCKINZY: It’s a letter that I received in regards to the emancipation
23 of the current child support. It’s from the Division of Child Support, dated April 27,
24 2007, addressed to me, regarding -- it states, “Dear Michael McKinzy, Junior.”
25 COMMISSIONER KIMMINAU: April of 2007?
142
1 MR. MCKINZY: Yes.
2 COMMISSIONER KIMMINAU: All right. Go ahead.
3 MR. MCKINZY: And it states, “Family Support Division stopped
4 enforcement for current child support for child Barbara McKinzy on January 6,
5 2004.” That was -- that’s notification that current support for Barbara had been
6 terminated.
7 MS. HESSENFLOW: I have no objection. That’s in the administrative case,
8 however, not the divorce case.
9 COMMISSIONER KIMMINAU: Respondent -- or, excuse me, Petitioner’s
10 136 will be received.
13 BY MR. MCKINZY:
14 Q. There’s 136 -- 137, rather.
15 MS. HESSENFLOW: I have no objection to this. It’s a letter from a month
16 before the judicial emancipation. Again, it’s in the administrative case, but that’s
17 fine if he wants to give it to you.
18 THE WITNESS: What do you want me to do with it?
19 BY MR. MCKINZY:
20 Q. No, just read the two -- two lines.
21 A. “Dear -- dear --”
22 COMMISSIONER KIMMINAU: Just a moment. Petitioner’s 137 will be
23 received.
143
1 THE WITNESS: “Dear Michael Eugene McKinzy, each of the children on
2 this case are considered to be emancipated; however, they have not been judicially
3 emancipated to our knowledge.”
4 BY MR. MCKINZY:
5 Q. Okay. And what date was that?
6 A. October 30, 2007.
7 Q. And that would have been prior to any administrative decision that was
8 rendered in the modification case that was rendered in 2008?
9 A. I’m not sure. I’m not sure.
10 MR. MCKINZY: I have no further questions.
11 COMMISSIONER KIMMINAU: All right. Ms. Hessenflow?
13 RECROSS-EXAMINATION BY MS. HESSENFLOW:
14 Q. I’m going to hand you what’s been marked as Respondent’s Exhibit 32,
15 which is already in evidence in this case and present in the Court’s notebook. It was
16 admitted into evidence as Respondent’s Exhibit 32 on 5/19/2016. Is that a copy of
17 the original administrative order?
18 A. Yes.
19 Q. Is that the one that establishes child support in the amount of $1,1065 per
20 month?
21 A. Yes, it does.
22 Q. And does it have a commencement date beginning 7/15/2002?
23 A. Yes.
24 Q. Very carefully, does that have the case number 02MC201872? Up at the top,
25 is it a MC case number?
144
1 A. Uh-huh, 02MC201872.
2 MS. HESSENFLOW: All right. I’m not going to offer it, Your Honor. It’s
3 already in evidence.
5 Q. I’m going to hand you now what’s been marked as Respondent’s Exhibit 30,
6 which is also already in evidence from the hearing on 5/19/2016, which I purport to
7 be a detailed payment history report certified by the clerk of the court, showing all
8 child support received, paid, owed, and maintenance received, paid, and owed -- no,
9 because this is child support only, right?
10 A. Yes.
11 Q. Does this show that this is in the 02MC administrative case?
12 A. Yes.
13 Q. Does it show all child support ever owed and ever paid pursuant to the
15 A. Yes.
16 Q. And if you could click back, please, about halfway through until you get to a
17 -- a page -- it says page 5 in the top corner, and at the bottom entry on the page is 7 of
18 2002. It says page 5 in the top corner. At the bottom, the last entry is 7 of 2002. Did
19 you find it? Right here.
20 A. Oh, okay. Thank you, ma’am.
21 Q. And we just talked about the administrative order says child support starts in
22 7 of 2002, correct?
23 A. Yes.
24 Q. Mr. McKinzy was very concerned to make sure that he had received credit
25 for his payments of July, August, and September of 2002 and that he didn’t have an
145
1 arrearage, correct?
2 A. Correct.
3 Q. Does this printout properly show that he received credit for and you received,
4 as you stated, those three payments?
5 A. Correct.
6 Q. There wasn’t no arrearage there?
7 A. No.
8 Q. All right. And does this payment history accurately reflect all of the
9 additional payments owed and all of the payments received under the administrative
10 case order?
11 A. Correct.
12 Q. Can you turn to the previous page, page 4? And just hold it there, and I’m
13 going to hand you what’s been marked as Respondent’s Exhibit 23, again, already in
14 evidence on the hearing on 5/19/2016. Respondent’s Exhibit 23 is a copy of the
15 administrative modification order, the findings and judgments of the Honorable
16 Patrick Campbell, emancipating the three older children and establishing a child
17 support payment for your son only in the amount of $599 per month; is that correct?
18 A. Correct.
19 Q. And you also were receiving maintenance in the amount of $200 per month,
20 correct?
21 A. Correct.
22 Q. If you look on page 4, halfway down, under 1/2007 --
23 A. Uh-huh.
24 Q. -- does it show between January and February, that once those children were
25 emancipated, the total monthly support obligation went from 1,365 --
146
1 A. Uh-huh.
2 Q. -- which is 1,165 plus your 200 maintenance --
3 A. Uh-huh.
4 Q. -- down to 799 per month, which is the 599 in the administrative modification
5 judgment, plus your $200 per month?
6 A. Correct.
7 Q. And it continues to show only your $200 per month and the 599 for your
8 remaining unemancipated child all the way up through 11 of 2007; is that correct?
9 A. Correct.
10 Q. Next month, judicial emancipation of your other child and there’s no more
11 payments ever showing owed as of December of 2007; is that correct?
12 A. Correct.
13 Q. However, if you look across from 11 of 2007, at that time, there were
14 arrearages of 36,559.23, correct?
15 A. Correct.
16 Q. And those hung out there on this printout for a couple of months, didn’t they?
17 A. Yes.
18 Q. All right. Let’s see what happened to those. I’m going to hand you now
19 what’s been marked as Respondent’s Exhibit 1 and ask you if you recognize that as a
20 copy of your dissolution judgment.
21 A. Yes, it is.
22 Q. And does that have a separate case number, 02FC200809?
23 A. Yes.
24 Q. And you and Mr. McKinzy were pro so? In fact, he was the pro se Petitioner
25 in this case, correct?
147
1 A. Yes.
2 Q. He did not file a motion to consolidate the administrative case into the
3 divorce case? In fact, there’s no indication that the divorce -- that Child Support
4 knew there were two separate orders at that time, correct?
5 A. Correct.
6 Q. In fact, they did not open a child support case for the divorce decree? They
7 continued pursuant to Respondent’s Exhibit 30 to process all child support owed and
8 even the maintenance owed after the divorce decree in that old administrative case
9 number; is that correct?
10 A. Correct.
11 Q. However, after the modification and the emancipation in 2007, an attorney
12 named Rachel Ommerman became involved in the case; is that correct?
13 A. Yes.
14 Q. And I became involved in the case, correct?
15 A. Yes.
16 Q. I did those QDROs for your money?
17 A. Yes.
18 Q. And we consolidated these things so there were not two separate orders with
19 two separate printouts, correct?
20 A. Correct.
21 Q. I’m going to hand you what’s been marked as Respondent’s Exhibit 36, also
22 in evidence from the hearing on 5/15, and ask you if that’s an order of consolidation.
23 A. Yes, it is.
24 Q. And did the Honorable Patrick Campbell order?
25 A. Yes.
148
1 Q. “This Court determines that nowhere in the record of 02FC200809, the
2 underlying divorce case, nor in the record of 02MC201872, the administrative
3 support case, has a former order of consolidation been issued. And for judicial
4 economy and in order to facilitate the resolution of all pending issues, the Court finds
5 good cause to exist, all future pleadings, et cetera, et cetera consolidated,” and from
6 that day forward, everything was to be filed and processed under 02FC200809, the
7 divorce case; is that correct?
9 Q. And is Judge Campbell’s order dated December 5, 2007?
10 A. Correct.
11 Q. All right. Now, go back super quick for me to Respondent’s Exhibit 30, and
12 let’s take a look at what happened in December of 2007 when Judge Campbell issued
13 his order. And, again, you are looking at page 4.
14 A. Okay.
15 Q. As of December of 2007, the 799 goes away, they show nothing else owed,
16 nothing else paid, that arrearage is just sitting out there. That’s what was owed as of
17 that time when the Judge said keep track of it over here from now on; is that correct?
18 A. Correct.
19 Q. I’m going to hand you now what’s been marked as Respondent’s Exhibit 15,
20 already in evidence from the hearing on 5/19/2016, and ask you if you recognize that
21 as a printout for the divorce case, not the administrative case.
22 A. Correct.
23 Q. All right. I’d like you to click all the way back, please, to page 4, where the
24 first entry is 12/7 for 799.
25 COMMISSIONER KIMMINAU: Just a second. I’m going to get caught up,
149
1 all right?
3 COMMISSIONER KIMMINAU: All right. I have the prior Exhibit 15 that
4 was admitted back in May. All right.
5 MS. HESSENFLOW: Yes, sir.
6 COMMISSIONER KIMMINAU: And you’re on what page?
7 MS. HESSENFLOW: If you flip back to page 4 --
9 MS. HESSENFLOW: -- you’ll find the first entry corresponds and picks up
10 where the last one left off on 12/7.
11 COMMISSIONER KIMMINAU: Do you have a copy, Mr. McKinzy?
12 MR. MCKINZY: What are we on?
13 COMMISSIONER KIMMINAU: We’re on No. 15 from the original hearing
14 in May.
15 MR. MCKINZY: Oh, no, but I’ll -- I have the current as of today. That’s
16 what I always get.
17 COMMISSIONER KIMMINAU: Well, if you want to take a look with me,
18 you can -- you can follow along.
20 MS. HESSENFLOW: And I apologize, I gave him his copies also.
21 COMMISSIONER KIMMINAU: Yeah, I gotcha.
23 Q. Okay. So if you look on page 4, right where the 799 a month for the current
24 support of 599 for your youngest son and the 200 per month in maintenance leaves
25 off on the administrative --
150
1 A. Yes.
2 Q. -- it picks up here, doesn’t it?
3 A. Yes.
4 Q. And remember we talked about those arrearages that were hanging out on the
5 other order for a few months and then they disappeared?
6 A. Yes.
7 Q. Look under 3/2008, the month that they disappeared from the administrative
8 order.
9 A. Yes.
10 Q. And look how the arrearages jump from 2,397 up to 39,755.
11 A. Correct.
12 Q. Correct? So as of December of 2007, all current support and all payments
13 made from that time forward stopped being recorded or accounted for on the
14 administrative and began being accounted for exclusively on the divorce printout?
15 A. Correct.
16 Q. And those arrearages that had already accumulated and were still owed were
17 transferred over so that you had one printout that shows what’s been paid, what’s
18 been owed, and is up-to-date as of that date?
19 A. Correct.
20 Q. And moving forward?
21 A. Correct.
22 Q. All right. Now, Mr. McKinzy also asked you about whether or not he
23 received credit for the amounts that we seized pursuant to QDROs for maintenance
24 and child support, correct?
25 A. Correct.
151
1 Q. And in May, we offered the orders, the affidavit of credits, all of that stuff,
2 it’s already in evidence. We offered six exhibits outlining where all that money went
3 and the affidavits of credit, and in fact they’re showing on the Court’s records for this
4 case, correct?
5 A. Correct.
6 Q. So I’m going to hand you back -- and I know he used different exhibit
7 numbers, but just for economy, Respondent’s Exhibit 17 and Respondent’s Exhibit
8 18, which are already in evidence from the hearing on 5/19/2016, and they’re the
9 same affidavits that Mr. McKinzy discussed with you a little while ago, although
10 they had different numbers; is that correct?
11 A. Yes.
12 Q. And he wanted to make sure that these had been included in the credits,
13 correct?
14 A. Yes.
15 Q. And we went over this in detail, about 30 minutes’ worth, that May, right?
16 A. Yes.
17 Q. Okay. Just for short and sweet, on Respondent’s Exhibit 17, can you please
18 look on the affidavit on paragraph 7? Does it say you received maintenance of
19 $3,208.42?
20 A. Yes.
21 Q. Can you pick up Respondent’s 18, the affidavit for child support?
22 COMMISSIONER KIMMINAU: Which one?
23 MS. HESSENFLOW: Respondent’s 18, the affidavit --
25 MS. HESSENFLOW: -- for child support.
152
2 Q. And can you turn to page 2? And can you look at paragraph 7?
3 A. Yes.
4 Q. Now, he’s getting confused over the amounts, but if you look at paragraph 6,
5 part of the money received was your property division, right?
6 A. Yes.
7 Q. In paragraph 7, the -- it says that the amount of past due child support we
8 received was $14,421.22, correct?
9 A. Yes.
10 Q. Now, I’m going to hand you what’s been marked as Respondent’s Exhibit 34.
11 Again, this is already in evidence from the hearing on 5/19, and I’m going to ask you
12 if you recognize that as an omnibus printout detailing everything owed and paid
13 under the administrative order and everything owed and paid under the divorce court
14 order up through the date of that hearing in May or right before it. Specifically,
15 Respondent’s Exhibit 34 goes up through 4/13/16.
16 A. Correct.
17 Q. All right. And does this document show every single payment made by or on
18 Mr. McKinzy’s behalf in both the administrative and the child support -- or and the
19 divorce case as of that date?
20 A. Correct.
21 Q. And it also shows the amounts owed for 1,363, then drop down to 799, then
22 eventually dropping down when your older son was emancipated, correct?
23 A. Correct.
24 Q. Now, let’s make sure we gave him credit for those things we took out of his
25 pension.
153
1 A. Okay.
2 Q. So I’m going to ask you to go all the way back to page 1. And, again, he has
3 credit for those first three payments of 1,165 he gave you directly, correct?
4 A. Yes.
5 Q. All right. Moving along. Moving along. If you can go now to -- just keep
6 flipping over until you get to -- to a page that says page 13. And we’re in 2006s and
7 2007s. It starts with 6/30/2006 as the top number. Have you found it?
8 A. Yes.
9 COMMISSIONER KIMMINAU: Mr. McKinzy, do you have it? The
10 exhibit they’re referring to?
11 MR. MCKINZY: Can I see?
12 COMMISSIONER KIMMINAU: This is from the trial. You can go ahead
13 and take a look at that.
15 Q. All right. Let’s go down to 12/29/2006. Do we give him credit for the
16 14,421.22 we received in child support?
17 A. Yes.
18 Q. Go down directly below that. On 1/2/2007 -- the checks came in different
19 months -- does he have credit there for the $3,208.42 in maintenance?
20 A. He does.
21 Q. Down on 11/23/2007, did we give him an additional credit for a $4,458.85
22 income tax refund that I found that wasn’t showing on either printout?
23 A. Yes.
24 Q. And you were not happy about that?
25 A. Yes.
154
1 Q. I told you the right thing to do is give the man credit for it. They took it from
2 his taxes. You got it?
3 A. Yes.
4 Q. All right. Let’s flip over. Now, this shows the payments due of 1,365 all the
5 way up until December of 2006, and then starting with January of 2007, it drops
6 down to 799, just like it’s supposed to, correct?
7 A. Yes.
8 Q. All right. Now, flip over to page 14. It shows the 799 due every month. It
9 shows everything he paid. Next page shows the 799 due. Now, there’s a problem,
10 isn’t there, with May of 2009?
11 A. Okay.
12 Q. It still shows 799 due, right?
13 A. Yes.
14 Q. It should have dropped down to 200 a month, right?
15 A. Right.
16 Q. It shouldn’t have been 599 after May. As of June, it should have just been
17 the 200, correct?
18 A. Right on.
19 Q. But even though you sent the affidavit in and he sent like five letters in, for
20 some reason nobody did anything, correct?
21 A. Correct.
22 Q. And then that just continued to show 799 due that’s not supposed to, all the
23 way up until 2/15/2011; is that correct?
24 A. Right. Correct.
25 COMMISSIONER KIMMINAU: What was that, Ms. --
155
1 MS. HESSENFLOW: Your Honor, it’s 2/15/2011. It’s on page 16. One of
2 Mr. McKinzy’s duteous letters finally got somebody’s attention and they
3 emancipated this kid, who by then was over 21. And you’ll see at that point it drops
4 down to $200 a month and sits there forever; is that correct?
5 A. Correct.
6 Q. Now, he then --
7 COMMISSIONER KIMMINAU: May I see the exhibit, Mr. McKinzy?
11 Q. Now, they administratively emancipated your youngest son on his 21st
12 birthday, correct? They processed the paperwork and that’s approximately --
13 A. Yeah.
14 Q. -- when it happened? Because he was 19 in May?
15 A. Yes.
16 Q. They emancipated him early in 2011, because he turned 21 in February --
17 A. Yes.
18 Q. -- of ’11? Okay. Administrative done -- should be a done deal. He’s
19 emancipated, correct?
20 A. Yes.
21 Q. It’s not right, is it?
22 A. No.
23 Q. Can you look at the last page and look at 3/11/2016? While you’re doing
24 that, I’m going to talk and ask you if this information is correct. Even though I didn’t
25 enter an appearance in your case in April, you started bothering me in November,
156
1 December, January, you’re calling me, calling me, calling me, correct?
2 A. Correct.
3 Q. About helping you with the case?
4 A. Yes.
5 Q. And I had you come in, in March, because I wanted to see kind of what was
6 going on, correct?
7 A. Yes.
8 Q. And is this another one of these that you aren’t real happy with me?
9 A. No.
10 Q. I told you that he deserved a credit for 10,722. Even though legally you
11 didn’t have to give it to him, it was the right thing to do?
12 A. Yes.
13 Q. And I told you I wouldn’t represent you if you didn’t do the right thing and
14 give him that credit, correct?
15 A. Right.
16 Q. I entered my appearance the next month?
17 A. Yes.
18 Q. Does this accurately reflect, as it did in May, that as of 4/13/2016, the total
19 principal for child support and arrearages owed, after all of the credits have been
20 applied, was $31,194.42?
21 A. Correct.
22 Q. Below that, does it show the interest accumulated in the amount of
23 $49,772.18 at the rate of 1 percent per month per annum?
24 A. Correct.
25 Q. All right. And then we all went away for a little while. We were supposed to
157
1 come back in July, correct?
2 A. Correct.
4 and ask if you recognize that as a copy of a child support printout in the divorce case
5 that shows the additional payments made between April of 2016 all the way up
6 through 7/11/16, when we were going to be in here for trial?
7 A. Yes.
8 MS. HESSENFLOW: All right. Offer Respondent’s Exhibit 3.
9 And, sir, I didn’t give you a copy of that yet, because we didn’t have the trial
10 that day.
12 COMMISSIONER KIMMINAU: Any objection, Mr. McKinzy, to 3?
18 Q. And does Respondent’s 3 show all the additional -- nothing has changed as
19 far as when people were emancipated, all the credits that are on there, but it does
20 show the additional payments that Mr. McKinzy made in the amount of 236.64
21 weekly. And if you go to the very, very back of this one and work your way forward
22 a few pages, you will see on page 16 the payment for 411, which is where we left off
23 on the other printout. But he made more payments in April, more payments in May,
24 more payments in June of ’16, and this includes up and through 7/5/2016; is that
25 correct?
158
1 A. Correct.
2 Q. All right. And, obviously, he made those payments; he should get credit for
3 them, correct?
4 A. Correct.
5 Q. All right. I’m going to hand you now what’s been marked as Respondent’s
6 Exhibit 14 and ask you if you recognize that as one of those child support interest
7 printouts that is identical in every way to the exhibit we offered in May, except it
8 gives him credit for the additional payments made as reflected on the updated
9 printout Respondent’s 3?
10 A. Correct.
12 COMMISSIONER KIMMINAU: Have you seen that one, Mr. McKinzy?
13 MR. MCKINZY: I’ve seen it.
15 MR. MCKINZY: I object as to it being an accurate amount due. Above and
16 beyond. It's -- the accurate amount due is that there is no past due child support
17 currently due. Other than that --
18 COMMISSIONER KIMMINAU: You -- you don’t agree with the amount,
19 but you have no problem with admitting the document?
20 MR. MCKINZY: I have no --
21 COMMISSIONER KIMMINAU: That’s their version of it.
23 COMMISSIONER KIMMINAU: All right. Respondent’s 14 is admitted.
159
2 Q. Okay. And on Respondent’s Exhibit 34, as of 4/13/2016, again, he owed
3 31,194.42. Can you turn back a few pages from the back, on page 22? Do you find
4 the totals there?
5 A. Yes.
6 Q. Okay. So on 4/13/2016, he owed just over 31,000. By 7/14, he was down to
7 28,754, which shows the updated interest, and then it shows the total due as of that
8 date; is that correct?
9 A. Correct.
10 Q. And that accurately, again, reflects all payments made, all credits, all interest
11 owed, omnibus, administrative, divorce, all the dates we’ve gone over?
12 A. Correct.
13 Q. All right. And we ended up not having trial that date; is that correct?
14 A. Correct.
15 Q. So some more time has passed?
16 A. Yes.
18 and ask you if you recognize that as a copy of an updated printout that now, guess
19 what, shows all child support paid between 7/2016 and yesterday?
20 A. Correct.
21 Q. All right. And it shows the payments that he continued to make, if you look
22 on pages 2, 3, and 4, in July, August, September, October, November. It even shows
23 his first payment on 1/3/2017; is that correct?
24 A. Correct.
160
7 Q. And at this time, I’m going to offer you Respondent’s Exhibit 77, which is,
8 guess what, an updated total, giving him credit for the payments that he’s made
9 between July 11 -- or July 11, 2016 and 1 -- what was it, 5 --
10 A. 1/9.
11 Q. -- of 2017?
12 A. 1/9.
13 Q. 1/9. And if you turn to the back and we look over at Respondent’s Exhibit 14
14 and what he would have owed as of trial last summer, the principal on 7/14 was
15 28,754, the principal -- accurate principal on Respondent’s 77 has now gone down to
16 $24,002, correct?
17 A. Correct.
18 Q. It shows the updated principal, correct?
19 A. Correct.
20 Q. And even though the total he owed on 7/14/2016 was 79,421, he’s down to
21 $76,232 as of yesterday; is that correct?
22 A. Correct.
23 Q. Are you asking this Court to enter a judgment for child support and
24 maintenance arrears as of 1/9/2017 in the amount of $24,002.10?
25 A. Correct.
161
1 Q. Are you asking the Court to enter an interest judgment as of 1/9/2017 in the
2 amount of $52,230.46?
3 A. Correct.
4 Q. For a total due as of today’s date in the amount of $76,232.56?
5 A. Correct.
6 Q. I’ve explained to you that the Court, given the nature of the arrearages, can
7 ask for up to 50 percent of Mr. McKinzy’s take-home income, which based upon the
8 pay records we looked at, could be as high as $2,000 per month; is that correct?
9 A. Correct.
11 ask if you recognize that as a copy of the current wage withholding.
12 MS. HESSENFLOW: And I think I have one in your book. If not, I have an
13 extra for Mr. McKinzy.
14 COMMISSIONER KIMMINAU: Go ahead, give it to him.
16 Q. Current wage withholding in effect against Mr. McKinzy’s wages; is that
17 correct?
18 A. Correct.
19 Q. You’re not asking that it be increased; you’re asking that he continue to pay
20 at only $236.64 per month; is that correct?
21 A. Correct.
22 Q. And you are asking that the first either dollar or $200 you receive each month
23 will go towards your current maintenance?
24 A. Yes.
25 Q. The rest would go to any attorney’s fees, after that, if the Court chooses to
162
1 award any?
2 A. Yes.
3 Q. After that, it would go to the interest?
4 A. Yes.
5 Q. And after that, it would go to the remainder of the arrearages?
6 A. Yes.
7 Q. And I’ve shown you the statute and we’ve talked about how that works?
8 A. Yes.
9 Q. Are you also asking that in the order -- the court order, that instead of the
10 Child Support Division being trustee, that I be trustee for receipt of those payments?
11 A. Yes.
12 Q. That way, I can follow the Court’s order, whatever he says, this has to be
13 paid, then this, then this, and each -- as each one of those gets done, just as with the
14 QDROs, I can do a satisfaction of judgment and take those off?
15 A. Yes.
16 Q. And you understand that statutorily as a child support case and maintenance
17 case, you’re entitled to additional interest?
18 A. Yes.
19 Q. You’re not asking that interest continue to accumulate even though you
20 could, are you?
21 A. No.
22 Q. You’re wanting to give him an opportunity to pay this down?
23 A. Yes.
24 Q. So as long as he continues to pay 236.36, whatever it is per month on
25 Respondent’s 52, you are not asking for any more interest on the arrearages, any
163
1 interest on the attorney’s fees, you just want him to pay down what’s owed; is that
2 correct?
3 A. Correct.
4 MS. HESSENFLOW: Offer Respondent’s 52 if I have not already, Your
5 Honor.
6 COMMISSIONER KIMMINAU: Mr. McKinzy?
7 MR. MCKINZY: No objections.
12 Q. However, in the event he misses even one payment, you want the interest to
13 pick up and start accumulating at that time on a arrearages owed and on the
14 attorney’s fees, if the Court is awarded those?
15 A. Yes.
16 Q. So this gives him an incentive for you not to have to go years without
17 payments, because as long as he pays just his 236 a week, however long that takes,
18 there’s no more interest, it’s all going directly to paying off the balance owed?
19 A. Yes.
20 Q. But if he leaves, you’re asking the Court to let you readdress the maintenance
21 and you’re asking the Court for that interest to continue ticking?
22 A. Yes.
23 MS. HESSENFLOW: That’s my evidence with regard to the arrearages
24 owed as of today’s date and the interest due thereon.
25 COMMISSIONER KIMMINAU: All right. Any questions -- further
164
1 questions, Mr. McKinzy, regarding the arrearages?
2 MR. MCKINZY: Yes. Based on the fact that the -- all the children were
3 emancipated as of October 30, 2007, the arrearage was not reflective -- well,
4 underlying is that the -- the initial administrative order was null and void from its
5 inception and it was converted into administrative -- or voluntary order --
6 MS. HESSENFLOW: Your Honor, I’m going to object to arguments. We
7 can summarize at the end.
9 MS. HESSENFLOW: If he has any questions for my client, I’d ask, please --
10 COMMISSIONER KIMMINAU: I’ll take your closing argument at the end.
12 COMMISSIONER KIMMINAU: But right now, if you have any other
13 questions of --
15 COMMISSIONER KIMMINAU: -- Ms. Gaston, let’s -- let’s do those.
16 MR. MCKINZY: Exhibit.
17 MS. HESSENFLOW: I have no objection. In fact, that’s also already in
18 evidence from May.
19 COMMISSIONER KIMMINAU: What is it and what number?
20 MR. MCKINZY: Exhibit --
21 MS. HESSENFLOW: Oh, go ahead, sorry, you can --
22 MR. MCKINZY: -- Petitioner 145, letter from Governor Matt Blunt’s office
23 -- or Director of Child Support, Joel Lock (phonetic spelling).
24 MS. HESSENFLOW: It’s Respondent’s Exhibit 27 from 5/19.
25 COMMISSIONER KIMMINAU: I don’t show that it was admitted then, but
165
1 --
2 MS. HESSENFLOW: Oh, well, we’ll take it now, then.
3 COMMISSIONER KIMMINAU: All right. Any objection?
4 MS. HESSENFLOW: None.
5 COMMISSIONER KIMMINAU: Then Petitioner’s 145 is received.
8 FURTHER REDIRECT EXAMINATION BY MR. MCKINZY:
9 Q. In this letter, could you read the second page at the top?
10 A. This here?
11 Q. Yes.
12 A. “Michael was no longer eligible for current child support when he turned 18
13 years old on October 16, 2007. FDS stopped assessing child -- current child support
14 October 2007 and will not collect any child support that has accrued after the date.
15 However, only the Court can emancipate a child and terminate a court order. You
16 may want to contact the Jackson County Court administrator’s office Department of
17 Civil Records phone number about the support that continues to accrue through the
18 Court. You may write to the office at --” the address.
19 Q. That’s -- that’s sufficient.
20 A. Okay.
21 Q. So this letter reflects that the -- Michael was emancipated initially by the
22 Division of Child Support on his 18th birthday prior to the -- that’s what this letter
23 reflects?
24 A. That’s what the --
25 Q. He was emancipated --
166
1 A. -- that’s what that reflects.
2 Q. -- administrative --
3 A. I don’t know if it’s administrative.
4 MR. MCKINZY: Well, they stopped collecting child support as the order
5 that they had put in effect based on this letter; is that correct?
6 MS. HESSENFLOW: Objection, Your Honor. Calls for speculation. The
7 letter speaks for itself. It’s in the administrative case --
8 COMMISSIONER KIMMINAU: Sustained.
9 MS. HESSENFLOW: -- while the modification was going forward. Two
10 months later, it flipped over to the divorce.
11 COMMISSIONER KIMMINAU: Objection’s sustained.
12 Next question, Mr. McKinzy?
13 MR. MCKINZY: No more further questions.
14 COMMISSIONER KIMMINAU: Anything further, Ms. Hessenflow?
15 MS. HESSENFLOW: Not with regard to arrearages and interest owed.
16 COMMISSIONER KIMMINAU: All right. You may step down, ma’am.
17 All right. Before we -- what’s next? We have attorney fee request by the
18 Respondent and --
19 MS. HESSENFLOW: Protective order issues --
20 COMMISSIONER KIMMINAU: -- protective order issues.
21 MS. HESSENFLOW: -- that we partially dealt with in May as well.
22 COMMISSIONER KIMMINAU: Yes. Let’s take up the protective order.
23 MS. HESSENFLOW: Certainly. I’d like to call Mr. McKinzy to the stand,
24 please.
25 COMMISSIONER KIMMINAU: All right. Mr. McKinzy, you’re still under
167
1 oath.
2 WITNESS MICHAEL MCKINZY RESUMED THE STAND.
3 DIRECT EXAMINATION RESUMED BY MS. HESSENFLOW:
4 Q. Mr. McKinzy, you were present in court in May of 2016, when we addressed
5 to some extent the arrearages, the discovery schedule, and a request for a protective
6 order; do you recall that?
7 A. Yes, I recall being in court.
8 Q. And she filed a motion asking for two things, and then based upon your
9 testimony that day, expanded that and asked for some additional things. And just to
10 summarize, she did not want to provide you her discovery, her tax returns, documents
11 like that because we have evidence that we put in and you agreed that you had been
12 posting pleadings, documents, child support printouts, all kinds of things for years
13 related to this case on your Google Plus or your Facebook or other websites; is that
14 correct?
15 A. Yes.
16 Q. And she also asked not only for a protective order with regard to the
17 discovery she was going to provide, but once we got into your testimony and your
18 number of followers and the number of sites these things were being exposed on, we
19 asked the Court to go ahead and seal the entire file; do you recall that?
20 A. I don’t recall sealing the file, no. I recall concerns about her personal
21 information being possibly divulged.
22 Q. Okay. And you saw those -- and if I’m putting the wrong words in your
23 mouth, just let me know, but you saw those as being kind of two different issues,
24 correct?
25 A. Yes.
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1 Q. Let me -- you are pro se?
2 A. Yes.
3 Q. So you haven’t hired a lawyer to file things in your case, correct?
4 A. I have, but I no longer can afford to utilize a lawyer’s assistance.
5 Q. Everything except the original motion has been prepared by you with your
6 own hands and brought to the Court?
7 A. Yes.
8 Q. And so your concern was not that the case should be sealed, because if you’d
9 hired a lawyer and they filed a bunch of pleadings, yes, it could be sealed, but your
10 concern was, “I created these documents myself, I have a right to my own work
11 product, my own information, I have freedom of speech.” Do you remember saying
12 that?
13 A. Yes, something of that nature.
14 Q. And you said, “These are not just pleadings in this case, but these are things
15 that I have created, and with respect to my own pleadings and the things that I’ve
16 created in this case, I believe that I have a right to disseminate those. They’re my
17 documents, even though I created them or they’re related to court;” is that correct?
18 A. Something of that nature.
19 Q. Is that -- please specify more if I’ve misstated what your -- what your concern
20 was.
21 A. I stated at the times that I was estranged from my children, and I was
22 attempting to use my resources online to keep them updated regarding the ongoing
23 litigations involving our divorce proceedings.
24 Q. Right. And I remember the Commissioner said could there maybe perhaps be
25 a better way to do that besides posting the pleadings. And I’m not talking about your
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1 preference. I’m talking about you said, “Freedom of speech. I created these.” Do
2 you remember that?
3 A. No, I don’t recall that exact --
4 Q. All right. With regard to the discovery documents, tax returns, stubs like
5 that, you said that you had no intention of putting those on the Internet, you
6 understood Social Security numbers, stuff like that would be problematic; do you
7 remember saying that?
8 A. I believe something to that nature.
9 Q. Okay. That you had no intention of putting those online?
10 A. I had no intention of putting them on without them being redacted, that I
11 would make efforts to make sure information regarding Social Security numbers and
12 personal information regarding -- were redacted.
13 Q. And you said you would do that and you testified that you understood and
14 you were willing to do that?
15 A. That I’d put forth efforts to make sure that Social Security numbers were
16 redacted, yes.
17 Q. And at the end of the case, the Judge asked me to prepare three orders. The
18 first one was with regard to the wage withholding. The second one was the
19 scheduling order regarding discovery. And he made a verbal order both sealing the
20 case and issuing a protective order regarding discovery and asked me to prepare
21 something for him; is that -- do you recall that?
22 A. I remember him stating that he would prepare -- or you would be preparing a
23 order, something of that nature.
24 Q. But you recall him stating at that time, “I’m sealing the case. I’m issuing the
25 protective order”?
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1 A. No, that you will prepare one for him to write, is what my understanding was.
2 Q. All right. And we offered into evidence at that time --
3 MS. HESSENFLOW: And I’m going to ask the Court to, again, with regard
4 to the protective order, be aware of Respondent’s Exhibit 28. That was the Google
5 Plus profile showing all of the followers and showing several of the documents from
6 the Court that had already been posted as of February of 2006, and I’d ask the Court
7 to consider that again with regard to this issue.
8 COMMISSIONER KIMMINAU: I have Exhibit 28 previously admitted in
9 May 2016, which were excerpts from Petitioner’s Google site, showing documents
10 from this and prior cases, including Ms. Gaston’s original response to the request for
11 admissions --
12 MS. HESSENFLOW: Correct.
13 COMMISSIONER KIMMINAU: -- which were publicly posted.
15 Q. Mr. McKinzy, have you continued to post not only your pleadings, but her
16 pleadings, exhibits you received during the hearing on 5/19, and in fact orders of the
17 Court, emails with the court staff about scheduling? You’ve posted pretty much
18 everything?
19 A. I’ve posted information that was not -- did not contain personal information
20 or her Social Security number, but that was publicly available.
21 Q. Did you put her entire tax return, including the Social Security numbers and
22 the W-2s, every one she gave you online?
23 A. No, I don’t recall that.
24 Q. In their entirety?
25 A. No, I don’t recall that.
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1 Q. Did you put all of the information and the answers to the admissions about
2 your children’s medical conditions, histories, dates of emancipation, questions, you
3 put all that on, didn’t you?
4 A. I believe I put information regarding their age --
5 Q. The admissions --
6 A. -- for emancipations.
7 Q. -- in full?
8 A. I believe so.
9 Q. The interrogatories in full?
10 A. I believe so.
11 Q. All four of her asset -- or income and expense statements?
12 MS. GASTON: Uh-huh.
13 THE WITNESS: Yes, I believe so.
15 Q. Her pay stubs?
17 THE WITNESS: I don’t think her pay stub. Maybe her --
19 Q. Her asset and debt statement?
20 A. Yes.
21 Q. After you said you wouldn’t do it?
22 A. I said I would redact her Social Security number and personal --
23 Q. But you didn’t, did you?
24 A. Yes, I -- I attempted to.
25 Q. Let me hand you what’s been marked as Respondent’s Exhibit 64 and ask
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1 you if you recognize that as a copy from your Google site of that 2015 W-2, her
2 tuition and student loan documentation, her income tax summary, her W-2 wage
3 statement for 2016, 2015, 2014, and 2013 and 2012.
4 A. Posted where?
5 Q. You tell me where you posted them.
6 A. It’s her case file. Only thing -- some -- I posted documents -- pleadings, yes.
7 Response --
8 Q. You posted tax returns?
9 A. I posted the responses from the discovery, yes.
10 Q. Which included tax returns?
11 A. Okay.
12 MS. GASTON: Yes, you did.
14 Q. Have you posted 72 additional documents since we were here in May that are
15 exhibits you got from court, discovery responses you received, or the additional
16 pleadings created by you and/or my responses thereto?
17 A. I believe so.
18 Q. You posted them on your Google Plus?
19 A. I believe so.
20 Q. Some of them are on Scribd?
21 A. Yes.
22 Q. Some of them are on your Facebook?
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1 Q. And you continued to do that after that hearing, after you promised not to put
2 her discovery, and after --
3 A. I --
4 Q. -- the Court indicated that they had concerns about that?
5 A. -- I indicated that I -- that you were going to do a protective order and I
6 would attempt to not disclose information that was personal, that I would attempt to
7 redact the information.
8 Q. I’m going to hand you now what’s been marked as Respondent’s Exhibit 66.
9 This is a site I wasn’t aware about back in May. Can you tell me what that is?
10 A. I can’t recognize it.
11 Q. “Michael McKinzy shared a link,” time and -- when is this?
12 A. They have automated links that people -- once you have, they can
13 automatically post -- like this (indiscernible) was not created by me. It’s something
14 that was done automatically.
15 Q. Okay. It says it’s Scribd.com.
16 A. Okay.
17 Q. What is that?
18 A. I know it to be a online library of --
19 Q. And how did our court documents get into this online library?
20 A. Because you have a personal account and you’re able to upload your --
21 Q. I do?
22 A. -- personal documents. Well, I have a personal --
23 Q. Is that what you did?
24 A. Yes.
25 Q. Okay. And next to the heading, “Judicial corruption in America,” are those
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1 copies of some of the admission pleadings that were filed after May? Page 1, June
2 10?
3 A. June 10?
4 Q. Yeah, “Judicial corruption in America.”
5 A. Okay.
6 Q. And there’s a copy of motions that weren’t even filed until after May,
7 correct?
8 A. Yes.
9 Q. Can you turn to the next page?
10 A. Okay.
11 Q. Is that my client’s modification income and expense statement?
12 A. Yes.
13 Q. Is there anything redacted on that?
14 A. The control you’re allowed to make private, and I attempted to make sure
15 everything was put private. You’re able to still upload information and make it
16 private.
17 Q. Sir, is anything redacted on that document?
18 A. No, but it’s not available to the public. You can make it private.
19 Q. I found it.
20 A. Okay. Well --
21 Q. All right. Next page. Response 1D, there’s her tax returns, response to
22 production of documents, all 62 pages, correct?
23 A. Yes. It’s an online library.
24 Q. I don’t care what it is.
25 A. Okay. Okay.
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1 Q. It’s on there.
2 A. Yes.
3 Q. It’s on your site. You put it on there?
4 A. It’s on -- it’s in my account, yes.
5 Q. Under that, is her modification asset and debt statement?
6 A. Yes.
7 Q. Her cross-pleadings?
8 A. Yes.
9 Q. The next page contains my calculations of the interest and support due and
10 my summaries about when all your kiddos were emancipated, correct?
11 A. Yes.
13 A. This site is similar to a Google account. You have an account, you’re able to
14 upload --
16 A. Yes.
17 Q. All right. I’m going to offer Respondent’s Exhibit 66, but I’m going to ask
18 you a question. Do you know why I did not do the order in June?
19 A. You said that you would, because the Court indicated that you would be
20 preparing it and submitting it to the Court.
21 Q. Do you know why I didn’t?
22 A. No, I’m not able to read your mind as to your motives.
23 Q. I wouldn’t think so. Did you know that on June 10, 2017, they published the
24 new orders that were to take effect January -- I’m sorry, August 28, 2016 and January
25 1, 2017? The new statutes and court rules came out just a few days after we were in
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1 court.
2 A. No, I’m not aware of that.
3 Q. You’re representing yourself here as an attorney, correct?
4 A. I’m representing myself as a pro se litigant, not as an attorney.
5 Q. Did you know that effective January 1, 2017, all administrative child support,
6 not just paternity, but dissolution cases, all pleadings, all documents filed, all
7 exhibits, and all discovery exchange thereunder became confidential?
8 A. No.
9 Q. Did you know that it’s a class A misdemeanor to disclose that information?
10 A. No.
11 Q. Did you know that if, on this particular site, you have seven people that
12 viewed that document since January, that is seven counts?
13 A. No, I wasn’t aware of that.
14 Q. Did you know that can be times the 70 documents you put on and one count
15 for every single person that looked at every single document?
16 A. No.
17 Q. I didn’t believe that you knew that, either. Did you know that there was also
18 a new statute with regard to confidential records and record keeping that allows only
19 the Court, prosecutors, attorneys of record, parties, the Family Support Division, and
20 any other party with a legitimate judicial interest to view any documents in domestic
21 cases effective August 28, 2016?
22 A. No.
23 Q. Based on the fact that the law was changed significantly and you had said you
24 were not going to post these documents, I didn’t do the order. I don’t think you did
25 know about this. If we ask the Judge to enter an order -- and it’ll probably take me
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1 30 days to do it, so we maybe set a review hearing in 60 days. I do the order giving
2 you 30 days, giving you the benefit of the doubt, to pull all this stuff down from
3 everywhere you posted it, will you do it?
4 A. Yes, I will.
5 Q. So if the Judge gives us an order of arrearages, gives us an order of interest,
6 makes his determination on all the pretrial motions, and enters a protective order that
7 says it’s sealed under all these statutes, I do an order saying you have to take it down
8 within 30 days and he sets a review date in about 60 days, you will comply?
9 A. Yes, I will.
10 Q. All right.
11 A. It was never my intention to be in violation of law if I had known.
12 Q. It just wasn’t a nice thing to do, anyway, was it?
13 A. Well, like I said, initially, my objective was to obtain -- I’m estranged from
14 my children, and I was wanting to make them aware of information that’s being
15 discussed that involves their --
16 MS. HESSENFLOW: I have no further questions regarding the protective
17 order, Your Honor. I’m going to ask the Court to order me to make whatever orders
18 you think are appropriate in an interim capacity, and rather than entering a final
19 judgment, to set this for a review hearing in 60 days. That gives me time to enter a
20 judgment. That will give him a full 30 days. When we come back, if he has
21 removed all of this information, that matter will be resolved. If not, there will be
22 further litigation, which is why I’m not asking that you enter a formal judgment at
23 that time.
24 COMMISSIONER KIMMINAU: Before I get to that, you referred to
25 Respondent’s 64. Are you offering that into evidence?
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1 MS. HESSENFLOW: Yes, if I hadn’t, I -- yes, sir. Thank you.
2 COMMISSIONER KIMMINAU: Mr. McKinzy?
3 MR. MCKINZY: Yes.
4 COMMISSIONER KIMMINAU: That was a copy from your Google site,
5 apparently. Are you objecting to that being received?
6 MR. MCKINZY: No.
10 COMMISSIONER KIMMINAU: Was there any objection to the offer of
11 Respondent’s 66 being received?
12 MR. MCKINZY: No.
16 MS. HESSENFLOW: Your Honor, I could call my client to tell you how she
17 feels about the protective order and what’s happened --
18 COMMISSIONER KIMMINAU: I appreciate that.
19 MS. HESSENFLOW: -- but I think you probably understand that and it
20 would be a waste of resources.
21 COMMISSIONER KIMMINAU: I thought we had been through this in
22 May. Are you opposed to the entry of a protective order under the current
23 circumstances, Mr. McKinzy?
24 MR. MCKINZY: Not given the law, no, I’m not.
25 COMMISSIONER KIMMINAU: Then if you would, I’ll follow your
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1 suggestion. I think I want a review in 60 days. I’ll give you a court date. And if it’s
2 pulled down to your -- everyone’s satisfaction, then we can eliminate the court date.
3 But until then, we’ll keep it on the docket and as a separate issue -- a separate matter
4 to be dealt with as I go through the rest of this and make my determination on the
5 other issues. So if you would, cite the statute and the protective order and the history
6 as you just did on examination and submit that for my signature at your earliest
7 convenience, and we’ll reset the matter in 60 days. Let me get my schedule up.
8 Actually, I’ll look at my schedule in my chambers as we take a break, and I’ll come
9 back with some available dates.
10 MS. HESSENFLOW: And, Your Honor, it wasn’t -- it wasn’t neglect of not
11 doing it. It was --
12 COMMISSIONER KIMMINAU: No, I --
13 MS. HESSENFLOW: -- an issue I didn’t know, the First Amendment, I’d
14 never dealt with that, and I actually sent some feelers out and found out also there
15 was a case pending involving another attorney that has subsequently been decided by
16 the Western District on September 16, 2016. So with the acknowledgment that he
17 wasn’t going to put this stuff on and I knew these new things were coming and there
18 was a case out there that directly dealt with First Amendment, and it didn’t go that
19 way, so --
20 COMMISSIONER KIMMINAU: All right. I -- I -- I’m not holding it
21 against anyone for not preparing the orders. I’m going to take a break, a brief one.
22 What we have left, I believe, is request for attorney fees. Is --
23 MS. HESSENFLOW: Correct, Your Honor.
24 COMMISSIONER KIMMINAU: -- is there anything beyond that?
25 MS. HESSENFLOW: I don’t have anything else.
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1 COMMISSIONER KIMMINAU: Mr. McKinzy, anything beyond argument
2 regarding fees?
3 MR. MCKINZY: No.
4 COMMISSIONER KIMMINAU: Okay. Well, let’s take -- let’s take about a
5 15-minute break and we’ll resume at 3:10, all right?
7 o0o
8 COMMISSIONER KIMMINAU: All right. We’re back on the record.
9 Go ahead, Mary.
10 THE CLERK: Case No. 02FC200809-04, McKinzy v. --
11 COMMISSIONER KIMMINAU: McKinzy and Gaston.
12 THE CLERK: -- Gaston.
13 COMMISSIONER KIMMINAU: We’re ready on the attorney fees, I believe
14 --
16 COMMISSIONER KIMMINAU: -- that’s where we left off.
17 MS. HESSENFLOW: I have one further request with regard to the protective
18 order. Would the Court please clarify on the record in the presence of Mr. McKinzy
19 and the Respondent, of course, a verbal protective order that none of the 40 exhibits I
20 just gave him are to go on the Internet when we leave, nothing else is to go on the
21 Internet, just so that we could clarify that? I know a written order will follow, but I
22 don’t want there to be any question that that is the Court’s position, because he’s got
23 copies of all my exhibits, and we’re getting ready to get my contract and my bill out.
24 COMMISSIONER KIMMINAU: My -- my admonition to the parties and
25 my order to the parties is that you obey the law. The law is neither one of you post
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1 anything on a social media site that discloses anything of the nature we’re dealing
2 with here. I think it should be clear to all at this point that it’s a violation of the law,
3 a class A misdemeanor and potentially multiple counts, if that’s violated, regardless
4 of what I say. So I would think and I’d hope that you all would agree that you’re
5 going to obey the law and that we won’t have this posting of these private documents
6 that are now considered private and confidential pursuant to state law.
7 Agreed, Ms. Gaston?
8 MS. GASTON: Agreed.
9 COMMISSIONER KIMMINAU: And, Mr. McKinzy?
10 MR. MCKINZY: Agreed.
12 MR. MCKINZY: Fully so.
13 MS. HESSENFLOW: I’ll ask Mr. McKinzy to return to the -- the stand,
14 please, about attorney’s fees.
15 COMMISSIONER KIMMINAU: Again, you’re under oath, Mr. McKinzy.
17 CONTINUED DIRECT EXAMINATION BY MS. HESSENFLOW:
18 Q. Mr. McKinzy, you had an attorney, Michaela Shelton, help you early on in
19 this case. She filed your pleadings in September, and she continued to represent you
20 until November, when she filed a motion to withdraw; is that correct?
22 Q. And what hourly rate did you agree to pay her for representation in a case of
23 this nature?
24 A. I don’t recall. I think it was $250, I think, an hour.
25 Q. Okay.
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1 A. No, it was a flat fee of $1,500, but she said beyond that -- I paid her a total of
2 $3,000, and then she wanted to go to an hourly rate, which I couldn’t afford. She
3 wanted an additional $5,000 up front, and I couldn’t afford that.
4 Q. Okay. So, initially, in September, sometime around then, I presume, when
5 your pleadings were filed, you paid 1,500, and then it was 3,000 to do some
6 additional work, and then after that, it was going to be 5,000 and an hourly, and
7 you’re just like, “I’m done”?
8 A. Yes, I couldn’t afford it.
9 Q. And she represented you between September, and in November she filed her
10 motion, and she was done in December; is that correct?
11 A. I believe so.
12 Q. And the only --
13 COMMISSIONER KIMMINAU: Just a second. That was September 2015?
15 COMMISSIONER KIMMINAU: And the withdrawal was when?
16 November of what year?
18 MS. HESSENFLOW: I believe she filed a motion and withdrew in
19 December of -- all in ’15.
20 COMMISSIONER KIMMINAU: So within that three-month period?
24 Q. And she prepared your service packet, the corresponding documents, like the
25 filing information sheet that went with your motion to modify and declaratory
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1 judgment, and those were the only pleadings that were filed, correct?
2 A. I believe so.
3 Q. I’m assuming and I don’t want you to tell me the nature of them or anything
4 that was said, but you had phone calls, you came to meet with her, you had
5 documents that you went over with her, so there was more time spent other than
6 what’s reflected by the one motion on file?
7 A. No, she took one -- we had one meeting and she got everything filed. We
8 didn’t have any follow-up, and it was just she said going to court is what she needed
9 more money for.
10 Q. So the 4,500 is just in a matter of months gone and now it’s --
11 A. Yeah.
12 Q. -- another 5,000?
13 A. Yes.
14 Q. There have been many, many, many pleadings filed in this case, correct?
15 A. Yes.
16 Q. And with the exception of that 4,500 over those few months, you’ve done the
17 work in this case, correct?
18 A. I’ve represented myself, yes.
19 Q. You’ve looked up cases and done legal research, I saw?
20 A. Yes, I attempted to.
21 Q. You’ve filed all your motions, copied the exhibits, went through and got all
22 of the documents to support your motions. Some of them were your summary
23 motion, 100 pages long?
24 A. Yes, the documents that I possess, yes.
25 Q. We did extensive discovery in this case. I asked for income and expense,
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1 asset and debt, and two things in a production of documents. There were a lot of
2 requests and things that you requested that we provided, correct?
3 A. Yes.
4 Q. Okay. From a work standpoint?
5 A. Yes.
6 Q. There were discovery motions, summary judgment motions, continuance
7 motions, a continuance hearing, a hearing on the wage withholding, lots of stuff
8 going on, correct?
9 A. Yes.
10 Q. Once you became pro se, between that date and today, if you had to just
11 estimate how much time you spent on the Internet and you spent working on
12 pleadings and you spent working on exhibits, the things that you have done, that’s a
13 lot of time, isn’t it?
14 A. It’s a lot of time, yes.
15 Q. Give me an estimate.
16 A. I would estimate I’ve spent probably in a week’s time 20 hours.
17 Q. So 20 hours a week. That’d be about 160 hours a month?
18 A. That wasn’t every consistently month, but --
19 Q. A lot?
20 A. Yes.
21 Q. In particular, there was a lot going on in April of 2016, May of 2016, June of
22 2016?
23 A. There was continuance that I was not in agreement of -- of being granted. I
24 was ready for trial.
25 Q. There was a lot of work?
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1 A. I didn’t foresee the need for work. I thought it was a simple matter of
2 emancipating the kids.
3 Q. Did you have to do a lot of work?
4 A. After the emancipation didn’t go forth and the continuance was granted, yes.
5 Q. All right. I’m going to withdraw the question. Do you have a company
6 called Pro Se USA?
7 A. Yes.
8 Q. In your contract online on that website, do you charge people $200 per hour
9 for your expertise in family law matters?
10 A. I haven’t charged anyone. That’s a contract that -- that I was asked to
11 provide if I was going to -- I haven’t provided any service to a single person.
12 Q. Do you have a contract on your website for Pro Se USA that specifies that
13 you would charge $200 per hour for your services?
14 A. I believe so.
15 Q. Do you specify on four different websites, including LinkedIn, your Pro Se
16 USA, and other websites, that you have an expertise in family law?
17 A. No, I provide research resources.
18 Q. Okay. We’ll get to that in a minute. You testified that you have never
19 represented anybody who is a pro se litigant or assisted them as part of pro se
20 litigation?
21 A. I haven’t provided -- been paid for. I’ve helped my like cousin when she
22 went through her case.
23 Q. Annette Tindal (phonetic spelling)?
24 A. Yes.
25 MS. HESSENFLOW: Your Honor, I’d ask that the Petitioner be read his
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1 Miranda rights before I continue with my next round of questioning.
2 COMMISSIONER KIMMINAU: What?
3 MS. HESSENFLOW: Okay. I’ll skip that. It was really good, though.
6 ask if you recognize that as your Google Plus page.
7 A. Yes.
8 Q. And the first page, it says who you are and that you have 84 followers and
9 284,000 view. It’s a little bit different than the other Google Plus page.
10 A. I don’t know.
11 Q. This is actually a business one, correct?
12 A. It’s one of my pages, yes.
13 Q. All right. And --
14 COMMISSIONER KIMMINAU: Are you offering it?
15 MS. HESSENFLOW: Oh, I’m so -- yes, Respondent’s 62.
17 MR. MCKINZY: No objections.
22 Q. All right. Can you turn over a few pages, then? Actually, I’m sorry, let me
23 do this here. I asked you earlier if you had any other businesses or companies that
24 you obtained revenues from, and you said you did but that they didn’t produce
25 revenues; is that correct?
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2 Q. Are you the president and CEO of EVoteTechnology?
3 A. Yes, that’s a company I formed.
4 Q. Of the Voter Integrity Project?
5 A. Yes, that’s an organization.
6 Q. Of the EVoteTechnology Foundation?
7 A. Yes.
8 Q. And then on the last three pages of that exhibit, is that your LinkedIn page?
10 Q. And on the bottom of the first page of your LinkedIn, again, founder and
11 president of EVoteTechnology?
12 A. Yes.
13 Q. Top of the page, V.I.P., Underground News, Pro Se University USA,
14 National Pro Se Association, Voter Integrity Party, McKinzy Foundation, Pro Se
15 International, Pro Se USA, da, da, da, da, da, da, da.
16 A. Yeah, those are ideas of concept of self-help organizations that I envision of
17 one day being able to help people or peer groups.
18 Q. Great. And so these are just concept things? They’re not things that are up
19 and running that you make money or actively pursue?
21 Q. You filed corporate tax returns in the state of Kansas for the past few years
22 for two of those businesses showing a profit?
23 A. No.
24 Q. Do you have a patent filed under one of those businesses from 2013?
25 A. That’s the application for -- that was denied or rejected or abandoned.
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1 Q. At the bottom of the last page of that exhibit, under skills, is the first one that
2 you list family law?
3 A. Yes, based on my interaction with dealing with family law in my personal
4 case.
5 Q. Okay. Have you ever handled or been involved in any family law cases other
6 than the one with Ms. Gaston?
7 A. No, not that I’m aware of, no.
8 Q. So all your expertise in family law has come from filing motions and
9 pleadings over the past 15 years in cases involving her?
10 A. No. Well, I’ve -- I’ve done -- I haven’t been in court on family law. That’s -
11 - yeah, pretty much that would be an accurate statement.
12 COMMISSIONER KIMMINAU: Ms. Hessenflow, are we getting to the
13 point where you’re asking for fees?
15 COMMISSIONER KIMMINAU: Okay. I’m -- I’m just curious as to where
16 this is going, because it’s --
17 MS. HESSENFLOW: Maybe nowhere. I’ll move on. You’re free to wave
18 at me any time, and I -- I’ll know what that means.
19 COMMISSIONER KIMMINAU: Well, I just did.
20 MS. HESSENFLOW: Thank you.
23 and ask you if you recognize that as a copy of your statement of assets and debts.
25 Q. You don’t list any real estate?
189
1 A. I don’t own any real estate.
2 Q. You have motor vehicles?
3 A. Yes.
4 Q. You list two of your companies?
5 A. Yes.
6 COMMISSIONER KIMMINAU: I’d like to follow along. Are you offering
7 this one?
8 MS. HESSENFLOW: Yes, did I not give it?
9 COMMISSIONER KIMMINAU: Well, you gave it.
10 MS. HESSENFLOW: I’m sorry.
11 COMMISSIONER KIMMINAU: But it’s not been offered.
12 MS. HESSENFLOW: Respondent’s Exhibit 6.
14 MS. HESSENFLOW: My bad.
16 MR. MCKINZY: No, no objection.
21 Q. And you signed this under oath as a representation of the assets and debts that
22 you have at present at least as of 5/31/2016?
24 Q. Okay.
25 A. That I’m aware of.
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1 Q. All right. I’ve got six different things here that are left off of your
2 modification assets and debts. So that the Judge doesn’t go crazy, I’m going to ask
3 you to pick a number between 1 and 6.
4 A. 4.
5 Q. And pick one more number.
6 A. 2.
8 and ask if you recognize that as a copy of the property account summary for some of
9 your properties that you own here in Jackson County.
10 A. No.
11 Q. No, you don’t own 9705 East 81st Terrace?
12 A. No, that was a residence of my second ex-wife. Me and her resided there
13 approximately less than a year. And 3743 Flora, that’s always been my parents’
14 address.
15 Q. And you don’t own that?
16 A. No, my parents own there -- reside there.
17 Q. So even though they’re both listed under your name as far as ownership,
18 those aren’t yours?
19 A. No, I wasn’t aware they were listed as me being the owner.
20 Q. What about 2218 East 69th Terrace?
21 A. That’s where I -- my -- that’s my brother’s address.
22 MS. HESSENFLOW: All right. I’m going to offer Respondent’s Exhibit 43.
23 The Court can take it for what it is or leave it where it sits.
24 MR. MCKINZY: Could I get a copy of this?
25 MS. HESSENFLOW: Yeah, you can have it.
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1 COMMISSIONER KIMMINAU: Any objection to me receiving it as an
2 exhibit, Mr. McKinzy?
4 COMMISSIONER KIMMINAU: No -- I’m sorry?
6 COMMISSIONER KIMMINAU: All right. 43 is received.
10 Q. Okay. Whether or not you own other things, you made a big deal about her
11 having extra money at the end of the month to help the kids and send to her mom,
12 and you thought that she should have a reduction in her maintenance if she’s got
13 extra money to send to other folks, right?
14 A. I made that -- that point, yes.
15 Q. And you testified that you can’t afford to continue to give her maintenance or
16 to have child support continued to take out of your check based upon all of the
17 expenses you have as a married man and maintaining your household?
18 A. That is correct and a desire to once again own a residence for me and my
19 wife.
20 Q. Okay.
21 A. Purchase a residence.
23 ask if you recognize what that is.
24 A. It appears to be the Smithsonian -- when they were opening up the
25 Smithsonian in Washington D.C.
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8 Q. On 8/25/2016, did you send a donation -- a personal donation of $1,176?
9 A. No, I didn’t send it. It was overdraft out of my account.
10 Q. So there was an overdraft on your account that ended up at the Smithsonian
11 in your name?
12 A. No, I sent the check and I didn’t have the funds, and I was planning on -- I
13 put in a -- a future purchase and they processed the -- for the total amount and it came
14 out and it overdrew my account.
15 Q. Before that, did one of your corporations that doesn’t earn any money send
16 $5,000 on October 10, 2014?
17 A. No, I’ve not disbursed $5,000.
18 Q. All right. So the Smithsonian letter -- is sending you tax and thank you
19 letters and you’re not even going to send them money?
20 A. No, I --
21 Q. Okay.
22 A. -- have not submitted $5,000 to any organization. I don’t have $5,000 to
23 submit.
24 MS. HESSENFLOW: Okay. Other than considering -- Your Honor, I’d ask
25 the Court to also consider the evidence of the Respondent’s income, all of the income
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1 information that was offered earlier with regard to ability to pay.
3 Q. And at this time, Mr. McKinzy, I’m going to turn towards the merits of your
4 case. I’m going to hand you what’s been marked as Respondent’s Exhibit 70.
5 MS. HESSENFLOW: And I believe I provided the Court with a copy of this
6 earlier and then it didn’t make it into evidence. If you do not have one in your
7 notebook, please let me know, Your Honor. And I’m going to go ahead and offer
8 that. That is a copy of the official court records in this case.
9 COMMISSIONER KIMMINAU: I do have 70 or something marked 70.
10 MS. HESSENFLOW: Perfect.
12 Q. Mr. McKinzy, halfway down, on 10/12/2007, is there that writ you filed
13 against Judge Campbell that we talked about earlier that you didn’t remember? Writ
14 of prohibition?
15 A. Yeah, I see it.
16 Q. Were two of the issues whether there was a void child support judgment
17 administrative from the beginning, and another issue was retroactive emancipation?
18 A. No, it was him refusing to dismiss the child -- the divorce decree, because
19 there was I thought at the time no valid order in place. That was the writ, that he
20 refused to dismiss the case.
21 Q. He refused to set aside the thing as void and dismiss your judgment?
22 A. He refused to grant a motion to dismiss is -- is the whole writ that I was
23 filing.
24 Q. Okay. On the next page, does that show the appeal to the Supreme Court in
25 2008 after the judgment we looked at earlier, where the Judge denied your motions
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1 and then the Western District then denied, you then filed the same issues with the
2 Supreme Court not only on 2/21/2008, but also on 2/29/2008, because you have filed
3 not one, but two motions for judicial review, one to set aside the original order and a
4 second one to retroactively emancipate your children, correct?
5 A. I believe it’s something of that nature, yes.
6 Q. And then you filed another writ against Patrick Campbell on 10/16/2007,
7 when he adopted the findings of the administrative order, retroactively emancipated
8 the three children, and entered that new order for your one son that then went in
9 effect and consolidated two months later? You took him up on a writ again, correct?
11 Q. So of these five just -- not Circuit Court -- just Appellate Court cases, all five
12 of them involve the same issues that we are here for again today?
13 A. Involve the same issues, yes.
14 Q. Okay.
15 A. I believe so, some of the same issues, regarding void judgments or void
16 orders.
17 Q. And you have not been successful in any of your appellate motions to
18 retroactively emancipate the kids or to have various divorce and administrative --
19 A. Well --
20 Q. -- judgments set aside?
21 A. -- I was -- the letters I received, stating that the children were administrative -
22 -
23 Q. Were you successful in front of the Western District or any of the Supreme
24 Courts on the cases we just discussed; yes or no?
25 A. No.
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1 Q. In the 02MC201872, the administrative case that was consolidated and closed
2 in 2007, have you continued to file motions and other things in that case as recent as
3 6/11/2015?
4 A. No, I’ve been filing stuff --
6 ask you if you recognize that as a copy of the docket entries for the original 02MC
7 administrative case.
8 A. This is not something I filed. It’s something that the Court files as they
9 choose to file. I did not file an affidavit.
10 Q. The Court filed something in your administrative case on 6/15?
11 A. Yes, it was the thing that they sent back. That’s when I sent in the order, and
12 they said it was improperly filed.
13 MS. HESSENFLOW: Offer Respondent’s Exhibit 71. It’s an official record
14 of the Court. The Court can review to see what the topics were if --
16 MS. HESSENFLOW: -- the Court is really, really bored.
21 that I think I already offered into evidence and ask you if you recognize that as a
22 copy of the docket entries from the -- not the ’01 divorce, not the ’02, not the ’03, not
23 this one, just the original divorce case. Take a look. Did you file six motions
24 subsequent to the divorce judgment, asking to set aside things as void, set aside the
25 administrative, set aside the divorce, and/or retroactively emancipate your kids?
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1 A. I did file motions to that nature, yes.
2 Q. You also filed some in the ’01 subcase?
3 A. It was motions that you filed that I became a party to that I responded. It was
4 not -- it was -- the pleadings that were filed -- it was a response to the pleadings that
5 were filed. I believe you were representing, so I was responding to a pleading. It
6 wasn’t initial pleadings that I was filing. I was responding.
7 Q. Did you respond to pleadings asking the Court to find administrative and
8 divorce judgments void and to retroactively emancipate your kids?
9 A. I believe so.
10 Q. Did you file motions to that effect in the ’02 subcase?
11 A. I believe so.
12 Q. Did you file motions to that effect in the ’04 subcase?
13 A. No, I don’t believe I had any -- the --
14 Q. This is the ’04 case.
15 A. Okay. Yes, I did. I’m getting confused with the sub -- yes.
16 Q. Do you think it is fair that she has had to pay an attorney to defend what is in
17 essence the 19th collateral attack on the underlying administrative judgment -- when
18 you count the motions filed in the various cases and the appeals, the 19th? Don’t you
19 think at some point you should be responsible for the fees that she has to incur to
20 come in here yet again?
21 A. No, I don’t believe I’m responsible because the truth has yet to be established
22 that the kids were emancipated on their 18th birthday, there’s no arrearage here.
23 Q. So you feel justified in -- in having brought this cause of action?
24 A. I feel with the facts, I believe, yeah, because the truth has not been
25 established that the children was emancipated on their 18th birthday.
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1 Q. Are you going to file something else after this case?
2 A. I have a right to appeal.
4 ask you if you recognize that as a copy of one of the contempt cases filed against you
5 by the State of Missouri when they took over and were representing Ms. Gaston for
6 free in this case.
7 A. No, I have not seen this document.
8 Q. You didn’t appear?
10 MR. MCKINZY: No, I don’t believe I appear in this document --
11 MS. HESSENFLOW: Okay. I’ll withdraw that.
12 MR. MCKINZY: -- in this case.
13 MS. HESSENFLOW: I’ll ask the Court to take judicial record of the official
14 court records in the ’03 subcase with regard to the issues presented and dispensed
15 (indiscernible).
17 Q. In the event you were served with this contempt petition on February 14,
18 2011, what action did you take two months later to make sure that the state of
19 Missouri was never going to represent her for free again anymore? What did you do?
20 A. I didn’t do anything. I’m not even aware of the contempt.
22 ask you if you recognize that as a copy of the petition you filed in federal court,
23 personally suing the attorney who filed the contempt, the entire Missouri Division of
24 Child Support Enforcement, Judge Sill-Rogers, Judge Schieber, Judge Campbell,
25 Mike Dyer, the Director of Child Support Enforcement, Aaron Seamands, Richard
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1 Dorr, Charles Bender, Fernando Gaitan, and the entire Jackson County Circuit Court.
2 A. It was not in response to the failure or the contempt.
3 Q. It just happened to be -- if you were served with that, it just -- coincidentally,
4 this was filed ten days later?
5 A. I know that it was not in response to that, because I had not been made aware
6 of it until --
8 COMMISSIONER KIMMINAU: 19’s received.
12 Q. Regardless of your motives, you filed this, correct?
13 A. Yes, it was -- it is a action that I did file.
14 Q. Were you successful?
15 A. No, I don’t believe I was.
16 Q. But the Division of Child Support Enforcement had to conflict off your case
17 and they can’t represent her for free anymore, correct?
18 A. I’m not aware of that as well.
19 Q. You’re not aware of the fact that she’s going to have to pay an attorney to
20 fight with you on all of these in the future?
21 A. No, I’m not aware.
22 Q. You didn’t send a letter and post on the Internet that you finally had Child
23 Support Enforcement off your back?
24 A. Not that I can recall. If you can provide the letter. Not that I can recall. I
25 haven’t --
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1 Q. Posting, Google Plus.
2 A. What time?
3 Q. Michael E. McKinzy, Sr.
4 A. No.
5 Q. Not the Michael McKinzy, Sr.
6 A. No. What time?
7 Q. You know what? I’ll withdraw the question. Mr. McKinzy, you have a habit
8 not only of filing repetitive litigation here that she is having to pay for, but this is
9 something that you do as a regular course of action, isn’t it?
10 A. No.
12 ask you if you recognize it as a printout of the 167 cases you have filed in various
13 federal, state, local, Western District, state appellate, federal circuit appellate, state
14 supreme, and United States Supreme Court cases over the past 12 years.
15 A. Yes, these appear to be some cases I’ve filed.
16 Q. Do you see anything on there that you don’t recognize or that you didn’t file?
17 A. Not that I’m aware of.
19 COMMISSIONER KIMMINAU: Objection, Mr. McKinzy?
20 MR. MCKINZY: Object to relevancy doing -- regarding the current matter at
21 hand.
22 COMMISSIONER KIMMINAU: I think it’s relevant to the attorney fee
23 issue that we’re discussing. Respondent’s 21 will be received.
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2 Q. Have you ever been successful in court, not by settlement, but in court on a
3 single one of these cases?
4 A. Not that I can recall.
5 Q. But you filed the cases against the same defendants over and over, just as
6 you’ve done with Ms. Gaston, correct?
7 A. It involved different jurisdictions or different issues.
8 Q. But you’ve filed cases against the same people over and over?
9 A. Yes.
10 Q. All right. Have you ever been successful in receiving an out-of-court
11 settlement for any of these cases?
12 A. I’m not at liberty to disclose due to confidentiality.
13 Q. There is no confidentiality. It’s just a yes or no. I’m not asking the amount.
14 A. Yes.
15 Q. So sometimes, people in these cases would kind of pay you to go away
16 because it was cheaper than fighting with you anymore, correct?
17 A. Not people. One settlement.
18 Q. What about the Missouri settlement about the gas that was turned off?
19 A. That’s the one settlement that I’m referring to.
20 Q. Okay. So I know about that one, so you didn’t breach confidentiality. How
21 much do you have to pay in attorney’s fees on these cases that you file over and over
22 and over, or do you do those pro se as well?
23 A. Representing myself pro so.
24 Q. We touched on this a little bit, but several courts, including three entire
25 federal circuits, have become so fed up with you filing things and causing
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1 corporations and attorneys to spend thousands of hours and thousands of dollars
2 dealing with you, that they have entered some unusual orders with regard to you
3 specifically, correct?
4 A. I’m not aware of the orders you’re referring to.
5 Q. Well, let’s take a look. I’m going to hand you what’s been marked as
6 Respondent’s Exhibit 51 and ask you if you recognize that as a 2010 decision in the
7 8th Circuit District Court of Appeals.
8 A. It says the Western District, but --
9 Q. Western District Court of Appeals, United States District Court, correct?
10 A. Yes.
11 MS. HESSENFLOW: All right. I’m going to offer Respondent’s Exhibit 51.
12 COMMISSIONER KIMMINAU: Any objection to that?
18 Q. In the second paragraph on the frame, to paraphrase, does it say, “We’re
19 entering summary judgment. You have been -- you, Mr. McKinzy, have been
20 previously warned that similar lawsuits filed against them are meritless.” This Court
21 orders you to reimburse a railroad for their attorney’s fees, and they enjoin you from
22 filing any other suits against this plaintiff, correct? They ordered you to pay the fees
23 of a big corporation and told you, you couldn’t sue them anymore?
24 A. Where are you referring?
25 Q. Is that what happened?
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1 A. Where are you reading from?
2 Q. Second paragraph, first page.
3 A. Yes, that’s what it states.
4 Q. Is that what happened?
5 A. I said without leave of district court.
6 Q. All right. Can you come down now -- not only are they ordering you to pay
7 the fees and telling you, you couldn’t sue them. Can you turn now to page 8,
8 paragraph B, where they’re asking for more attorney’s fees, starting in the middle?
9 “Since 2007, McKinzy has filed 38 other lawsuits and 11 appeals, 3 and 1 appeal
10 against Norphone alone -- Norfolk. None have ever been found to have any merit.
11 He’s been warned. The 10th Circuit has warned him. This Court enjoins him from
12 filing any further pro se proceedings in the future.” You can’t even file, can you?
13 A. Yes, with an attorney, I can.
14 Q. You can’t file on your own?
15 A. Yeah, that is correct.
16 Q. All right. Let’s just go to one more circuit. Do you want to go to the 10th or
17 the 11th?
18 A. It’s your case. Present it as you choose.
19 Q. All right. 10th is on top. I’m going to hand you what’s been marked as
20 Respondent’s Exhibit 20 and ask you if you recognize that as a 2010 opinion from
21 the 10th Circuit Federal Court of Appeals.
22 A. It appears to be.
24 COMMISSIONER KIMMINAU: Objections, Mr. McKinzy?
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5 Q. In this case, they said they dismiss the appeal and state that not only are they
6 considering rejected your arguments on two other occasions just in the last six
7 months, it is a frivolous appeal, and you have now been prohibited by the 10th
8 Circuit as well from filing any pleadings unless you first file them with the Presiding
9 Judge along with certain other additional documentation, and a Presiding Judge has
10 to give you permission before a clerk can file anything else on your behalf in the 10th
11 Circuit?
12 A. I believe so, something of that nature.
13 Q. You were ordered to pay attorney’s fees as sanctions there as well, right?
14 A. I believe so.
15 Q. Are there three entire federal circuits stretching from Idaho to Pennsylvania
16 where you cannot walk into court and file anything else?
17 A. No, there is not. I’ve never been in Idaho or Pennsylvania.
18 Q. But the circuits stretch from there, 10th Circuit, 8th Circuit. Are there three
19 federal circuits that won’t let you file?
20 A. There’s -- no, it’s not three -- they won’t let me file without -- let me file
21 without -- without representation of counsel.
22 Q. Are there three circuits that won’t let you file any more pro se pleadings?
24 Q. Do you know that more men have stood on the surface of the moon than have
25 been prohibited by three entire federal circuits from filing -- or given them filing
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1 restrictions?
2 COMMISSIONER KIMMINAU: Is that a question?
3 MR. MCKINZY: I don’t see the relevancy of --
4 MS. HESSENFLOW: I’ll withdraw the question.
6 Q. I’m going to hand you --
7 A. Are those exhibits, or am I able to maintain -- are those admitted, or are those
8 --
9 Q. They were admitted. Do you want them?
10 A. Yes.
11 Q. All right. I’ve got copies for you. I’ll give them to you. I’m going to hand
12 you what’s been marked as Respondent’s Exhibit 9. This was already offered into
13 evidence on 5/19. And I’d like -- this is -- when we talked about it before, when you
14 file all these pro se cases, you also file an application to proceed in forma pauperis so
15 you don’t have to pay court costs, filing fees, service fees, correct?
16 A. Fees that I can’t afford, yes.
17 Q. And you have to do an affidavit as to your financial status and sign that under
18 oath and attach it to your application to proceed in forma pauperis, correct?
19 A. Yes.
20 Q. And I’d like you to turn to the second to last page. In 42 such affidavits, did
21 you list your child support and spousal support as a substantial debt that prohibits you
22 from being able to hire an attorney to assist you?
23 A. It was what reported -- what was owed on my -- on my -- on my credit report,
24 yes.
25 Q. So when you come in and say you don’t owe any of the support in this case,
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1 when it is convenient for you to proceed in forma pauperis, such as on 8/30/2010,
2 you all of a sudden admit that you have $39,800 in child support with a monthly
3 payment of 599 due and $28,400 in past due maintenance with a monthly payment of
4 $200?
5 A. It lists -- you’re to list all debts or balance that’s -- balance that’s on my credit
6 report, yes.
7 Q. Okay. On the second page, did you sign under oath and say the debts and
8 other information listed on here are true and correct to your best knowledge?
9 A. Yes.
10 MS. HESSENFLOW: All right. Offer Respondent’s Exhibit 9, if I haven’t
11 already done that.
12 COMMISSIONER KIMMINAU: It was received in May of 2016.
14 Q. Now, in addition to financial circumstances, your history in this case, the
15 merits presented in the case today, and the fact that this is a pattern with you, you
16 also continue to post things, personal things about you not being -- receiving justice,
17 the courts being unfair to you, things about Ms. Gaston, and you publish these
18 regularly, correct?
19 A. I post documents that I produce, yes.
20 Q. Okay. I’m going to hand you what’s been marked as Respondent’s Exhibit
21 65 and ask you if you recognize this as a copy of a letter you sent to President Obama
22 on February 3, 2016.
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6 Q. That was while this case was pending, correct?
7 A. Yes.
8 Q. While these issues about retroactive emancipation and void orders were
9 pending and she was hiring me to defend her in this case. This was February of
10 2016, correct?
11 A. No, you had already been hired, I believe.
12 Q. Does the letter state that your kids should have been retroactively
13 emancipated and it shows you owe money that you don’t owe and that we took
14 money from your pension that you never got credit for, the same things that you’ve
15 said in here and in the previous pleadings, correct?
16 A. Yes.
17 Q. Does it also contain a picture of a pig, with the Circuit Court of Jackson
18 County, this little piggy and piggybank, and it’s got a little drawing there you sent to
19 the President for his enjoyment?
20 A. Yes.
21 Q. All right.
22 A. I don’t believe I sent this to the President. I think you downloaded it from the
23 website. It was not included in the letter I sent the President.
24 Q. All right. I’m going to hand you now what’s been marked as Respondent’s
25 Exhibit 45 and ask you if that is a response from President Obama that he sent to the
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1 Child Support Division to address these issues with you so that you would
2 understand what's going on?
3 A. No, I don’t believe it’s from the President. I think it’s from the Governor’s
4 office or someone. I had sent a letter to the Governor as well.
5 Q. Didn’t you receive -- oh, you sent a letter to the Governor as well?
6 A. Yes.
7 Q. Did you also send him a piggy?
8 A. No, I didn’t send the piggy to the Governor as well.
10 COMMISSIONER KIMMINAU: Objections, Mr. McKinzy?
16 Q. On the second page of that document, again, while this case is pending and
17 everything that has occurred in March, April, May, June, July forward, all of this
18 time, all of this effort could have been stopped, did they send you a letter letting you
19 know that your three older children were emancipated in December of 2007, that the
20 order for your younger child continued until he was 21, and that he’s emancipated
21 too?
22 A. Yes.
23 Q. And that came via the Governor’s office, you’re right, through to the Family
24 Support Division Director to you in February, when, again, this could have been
25 stopped at that point?
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1 A. No, because it reflects -- it states that the children were emancipated as of
2 December 2007, and I have alleged and it’s maintained that my daughter was
3 emancipated in 2004 and the twins emancipated in 2006 and Michael is emancipated
4 on his 18th birthday --
5 Q. Okay.
6 A. -- which is October 2007.
7 Q. The Court follows the law and the Court follows the facts. The Court follow
8 -- doesn’t -- doesn’t follow what you believe? You understand we’re asking for
9 attorney’s fees because you continue to file things that are contrary to the law and
10 contrary to the facts in this case? Do you understand that’s why we’re asking for
11 fees? It’s not because we don’t believe you or we want to give you grief. It’s
12 because you continue to do this despite judge after judge after court after supreme
13 court after Western District telling you that this is the law, these are the facts, you’re
14 wrong. Do you understand that’s why we’re asking for fees?
15 A. No, that’s not why I understand you’re asking for fees, but --
16 Q. Why do you think we’re -- she’s asking you to pay her fees?
17 A. Because of the facts have not been accepted as they are, the truth has not been
18 established, and because she was able to get an attorney to represent her, and -- and
19 the truth has yet to be established. Because of that, she has to incur costs that she
20 wishes to recover from me.
21 Q. Let’s assume that I charged her 250 an hour and that I also spent between 20
22 and 40 hours a week in April, May, and June, a lot less July -- or a whole bunch
23 getting ready in July, not much in August, not much in September, nothing in
24 October and November, and another 30 hours in the last month updating and bringing
25 everything done. At 250 an hour, does she stand any chance of being able to pay me
209
1 on her own?
2 A. I wouldn’t know.
3 Q. So if I have more than 200 hours in this case, which would be a low estimate,
4 based on the amount of time that you’ve spent, do you understand that would be
5 $50,000?
6 A. I wouldn’t be -- if that’s what the range would be.
7 Q. And you think that’s okay for her to be stuck with that bill in this case?
8 A. I believe it’s not okay for me to be stuck with a debt that I do not owe.
9 MS. HESSENFLOW: No further questions.
10 COMMISSIONER KIMMINAU: You may step down, Mr. McKinzy. Just a
11 point of clarification. Do you -- do you realize that if you have four children and,
12 say, the child support order is 1,165 a month, which it was, right?
13 MR. MCKINZY: It was 291, and it -- it equaled 1,165.
14 COMMISSIONER KIMMINAU: Right. And then one child emancipates,
15 let’s say, in 2004.
17 COMMISSIONER KIMMINAU: Unless it’s modified, the 1,165 remains in
18 place?
19 MR. MCKINZY: That’s not what I was told.
20 COMMISSIONER KIMMINAU: Well, that -- then you’ve been told wrong.
21 You can have a seat. You have to modify it in order for the amount to change.
22 MR. MCKINZY: And I was told that -- that they would be emancipated, that
23 child support would be -- based on operation of law, that the amount of child support
24 per child would no longer be able to be collected and that going forward --
25 COMMISSIONER KIMMINAU: Not -- not true.
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1 All right. Ms. -- Ms. Hessenflow, further evidence regarding the fees?
2 MS. HESSENFLOW: Yes, I’d like to call Ms. Gaston, please.
3 COMMISSIONER KIMMINAU: Ms. Gaston, please take the stand again.
4 And -- and I ask that you continue to remember you’re under oath.
5 MS. GASTON: Yes.
6 WITNESS CARLETHA GASTON RECALLED TO THE STAND.
7 DIRECT EXAMINATION RESUMED BY MS. HESSENFLOW:
8 Q. I’m going to hand you now what’s been marked as Respondent’s Exhibit 50.
9 MS. HESSENFLOW: Your Honor, a courtesy copy is in the Court’s
10 notebook.
12 Q. Can you tell me what that is?
13 A. It’s a contract for legal services.
14 Q. How much per hour did I charge you?
15 A. $250 per hour.
16 Q. Did I explain to you that that was significantly below my normal rate, but that
17 I was willing to reduce my rate such that I could make some effort to represent you?
18 A. Yes, ma’am.
19 Q. Even given that, did I tell you that, based upon having reviewed the history,
20 the multiple pleadings, been involved to some extent before, that I knew what I was
21 getting into?
22 A. Yes.
23 Q. What was I getting into?
24 A. A lot of legal.
25 Q. We knew there would be nonstop motions, discovery, constant annoyance,
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1 something going on at all times, correct?
2 A. Correct.
3 Q. Did I tell you I could not do it for free, you had to pay something up front?
4 A. Yes.
5 Q. How much did you pay up front?
6 A. 3,500.
7 Q. And then you made another payment?
8 A. 3,500.
9 Q. Have you paid a total of $7,500?
10 A. Yes.
11 Q. And at $250 per hour, how long do you think that lasted?
12 A. Not long.
13 Q. Have you and I spent dozens of hours and multiple meetings in my office
14 addressing discovery and motions and additional documents?
15 A. Yes.
16 Q. You have spent more than 50 hours in my office at various times preparing
17 for hearings, correct?
18 A. Yes.
19 Q. Without addressing one hearing, one anything, correct?
20 A. Right.
21 Q. Are you going to ask the Court to enter an order for attorney’s fees in favor of
22 you and against Mr. McKinzy?
23 A. Yes.
24 Q. Are you asking that that award of attorney’s fees be in the nature of a child
25 support award and collectable as such just as if it was child support?
212
1 A. Yes.
2 Q. That would mean that it would be non-dischargeable in bankruptcy, just like
3 child support arrearages?
4 A. Yes.
5 Q. That would mean that it would accrue interest at the rate of 1 percent per
6 month per annum, just like child support arrearages?
7 A. Yes.
8 Q. And that would mean that if he doesn’t pay his 238 per month, that interest
9 would accumulate on this as well; is that correct?
10 A. Yes.
12 COMMISSIONER KIMMINAU: Mr. McKinzy, any objection to the
13 contract?
15 COMMISSIONER KIMMINAU: All right. 50 will be received.
19 Q. Do you have the financial means to pay me for the additional fees that have
20 been accumulated?
21 A. No.
22 Q. Do you have any property that you can dispose of?
23 A. No.
24 Q. Do you have anything other than your take-home pay and the money that
25 you’re receiving in child support?
213
1 A. No.
2 Q. Do you believe that the merits of Mr. McKinzy’s case, the repetitive filings in
3 this matter, should be considered by the Court?
4 A. Yes.
5 Q. Do you believe that that -- his superior financial ability to continue to pay
6 should be considered by the Court?
7 A. Yes.
8 Q. Do you believe that his efforts in continuing to file other cases show that he
9 has no regard for anyone other than himself in filing what he wants to and that the
10 Court should consider that?
11 A. True.
12 Q. Do you believe that he has been told by Judges, most recently by the
13 Governor, that he has no case with regard to retroactive emancipation and void
14 judgments?
15 A. True.
16 Q. However, in the past, the State of Missouri predominantly represented you,
17 correct?
18 A. Yes.
19 Q. Did you have to hire an attorney or risk his summary judgment in the motion
20 to deem admitted, his motion for default, and the other pleadings that would have
21 taken away $70,000 in support and interest owed to you? You had to hire an attorney
22 or those --
23 A. Yes.
24 Q. -- motions were going to be granted, correct?
25 A. Yes.
214
1 Q. You had no choice?
2 A. No choice.
3 Q. Are you asking the Court to enter an award in your favor in an amount that
4 the Court deems appropriate under the circumstances?
5 A. Yes.
6 Q. Are you also asking the Court, at the conclusion of this hearing, not to give us
7 an amount, but to let us know whether or not the Court intends to enter a judgment
8 for attorney’s fees?
9 A. Yes.
10 Q. If the Court does not intend to enter a judgment, we will not submit your bill,
11 correct?
12 A. Yes.
13 Q. If the Court does intend to enter a judgment, we are going to ask the Court to
14 keep the matter under advisement and to allow us to submit the bill in 60 days, when
15 we come back with regard to the removing everything from the computer; is that
16 correct?
17 A. Correct.
18 Q. We’ve discussed this at length, haven’t we?
19 A. Yes.
20 Q. Number one, any bill that we have wouldn’t include today?
21 A. Yes.
22 Q. Wouldn’t include any judgments the Court asks me to prepare?
23 A. Yes.
24 Q. And we have no idea whether all that stuff is going to be off the Internet or
25 what’s going to be involved there, so we don’t know ultimately what the final
215
1 amount of appeal -- of fees are, correct?
2 A. Correct.
3 Q. And the other problem is this. The contract just says who we are, what we
4 pay. There’s nothing very personal and confidential there, correct?
5 A. Correct.
6 Q. Your bill is very detailed?
7 A. Correct.
8 Q. It outlines conversations we’ve had, information about your kids, very
9 personal information that is relevant to the case and is necessary for the Court to
10 evaluate?
11 A. Correct.
12 Q. Without a written order, are you uncomfortable having me submit your bill,
13 knowing that Mr. McKinzy will leave with a copy of it today before a written
14 protective order is in effect?
15 A. Uh-huh. Yes.
16 Q. Therefore, are you asking the Court, either at the end of today or once it takes
17 it under advisement, to let us know whether it intends to enter fees? If not, we won’t
18 ever submit the bill. If yes and the Court wants to see it, ask that we submit it in 60
19 days, once we know whether or not he’s complied with removing the things from the
20 Internet and once there is a written and enforceable protective order in effect?
21 A. Correct.
22 MS. HESSENFLOW: Nothing further.
23 COMMISSIONER KIMMINAU: Questions about the fees, Mr. McKinzy?
24 CROSS-EXAMINATION BY MR. MCKINZY:
25 Q. Prior to the filing of the -- this case in court, there was -- the youngest -- our
216
1 youngest son was still unemancipated; is that correct? He had not been emancipated
2 as of the filing of this case?
3 A. I think so, yeah.
4 Q. He was still unemancipated as of the filing in September 2015?
5 A. Yeah, I think so.
6 Q. So the result of filing this case resulted in getting first him emancipated, as he
7 had not been previously emancipated, and also a recalculation of child support that
8 was not due, due to his unemancipation; isn’t that correct?
9 A. Say that again. I kind of got lost there.
10 Q. The result of filing this case, you ultimately filed an affidavit emancipating
11 our youngest son? Prior to the filing, he was yet to be emancipated; is that correct?
12 A. Yeah, because I had talked to you prior to all this going on and I let -- I had
13 let you know that I would do that. You know, I had no recollection that they -- he
14 had not been emancipated. So before you brought all this up, I had already told you I
15 would do it, just let me know. But then you came up with all this. So as -- as of that
16 time, he was not emancipated.
17 Q. And from his emancipation, a recalculation resulting from the filing of this
18 litigation was done; isn’t that correct?
19 A. I’m not sure what you’re trying to say.
20 Q. That they recalculated the -- what was deemed owed child support based on
21 the new emancipation that you filed based on -- the $10,722 was due from you
22 coming to court and filing the emancipation; is that correct? You filed an
23 emancipation and then you filed the credit due to the emancipation; is that correct?
24 A. No, that’s not correct. What was --
25 COMMISSIONER KIMMINAU: I understand what you’re saying,
217
1 Mr. McKinzy, that there was merit to your claim because you -- you were entitled to
2 a credit that you hadn’t yet received when you filed your motion; is that right?
3 MR. MCKINZY: There was -- yes.
4 BY MR. MCKINZY:
5 Q. And there was also additional credits that were done -- there were also
6 additional credits that were done after the litigation that was not for -- that was
7 resulted from the litigation; isn’t that right? Your counsel made you aware of
8 additional credits that I was entitled to in reception of income tax that had not been
9 credited; is that correct?
10 A. Well, all except for one.
11 Q. It was --
12 A. You made it aware that you thought he was not -- that he was still being --
13 they was still taking out money. And I told you I would go down and see about it
14 and have it taken care of, and I did. But for some reason, they did not do it, so they
15 sent -- I guess sent it back and -- but other than that, I -- I couldn’t really tell you.
16 I’m not --
17 Q. But in the nature of additional amounts that were due to be credited to me
18 that have not been prior to this litigation would have remained uncredited had it not
19 been that the litigation was brought forward in your process of litigating; is that
20 correct? The $4,000 that -- of income tax that had not been previously credited was a
21 result from this litigation.
22 A. If we -- if we hadn’t have went through and looked through everything with a
23 fine-toothed comb, yeah.
24 Q. And it resulted in approximately -- there was a discrepancy regarding the
25 total amount due because of the unemancipating -- when -- when the emancipation
218
1 was -- should have been done that was cleared up from this litigation; isn’t that
2 correct?
3 A. I’m not sure what you said.
4 Q. From this litigation, you were able to resolve credits that would have been not
5 credited and cases would have not been resolved had this case not been filed; isn’t
6 that correct?
7 A. Not really, because Ms. Katz (phonetic spelling) told you at our meeting that,
8 as of what we had discussed, it could have been taken care of, but you didn’t have
9 that understanding, so you went that way in order to do what you thought was best
10 for you.
11 Q. So I’m just mentioning the credit that you gave was due from this filing and
12 the --
13 A. Yes, I guess. I guess. I don’t know.
14 Q. Okay. Would you believe that the merits of this case that brought forth the
15 unpaid or uncredited was meritous (sic), that it was -- that it was worth filing and
16 bringing forth? In your opinion, do you believe that it was useful litigation to bring
17 forth those facts to the Court’s attention?
18 A. I believe that a lot of things could have been done a lot better on your -- on
19 your side. You know, you could have sat down and -- and we could have litigated
20 this -- like Ms. Katz said, could have went in closed doors and did this and found out
21 all this. I mean, there could have been a better way, but you chose to take it this way.
22 But what I mean, though, everything that you had been doing behind my back, I
23 didn’t know how severe this stuff was. You know, my -- I don’t know nothing about
24 the law. My thing of it is I just sit back and -- and let you did what you wanted to do.
25 And the thing of it was, it might not have been the right thing, but I wasn’t bothering
219
1 you, because the thing of it was, the children were doing their thing. They --
2 COMMISSIONER KIMMINAU: I think we’re beyond the question at this
3 point, all right?
4 THE WITNESS: Yes.
5 COMMISSIONER KIMMINAU: Do you have another question,
6 Mr. McKinzy?
7 BY MR. MCKINZY:
8 Q. So once again, you --
9 MS. HESSENFLOW: Asked and answered four times if it’s going to relate
10 to whether or not he received a credit as part of her litigation that he would not
11 otherwise have received.
12 COMMISSIONER KIMMINAU: Yeah, I get that, Mr. McKinzy.
14 COMMISSIONER KIMMINAU: I understand that but for the filing, that
15 may not have occurred, all right?
17 BY MR. MCKINZY:
18 Q. Other than that, the -- prior to this litigation that now shows the 14,000 that’s
19 being credited, had that been previously -- prior to the litigation, had that been
20 credited toward past child support?
21 A. I don’t think so.
22 Q. So that was -- an additional result of this litigation was the proper crediting of
23 the 401(k) to back pass child support that had not been previously been credited that
24 resulted from this litigation as well; isn’t that correct?
25 COMMISSIONER KIMMINAU: I’m aware of the credits that have been --
220
1 MR. MCKINZY: That’s just the merit of -- of what resulted.
2 COMMISSIONER KIMMINAU: I -- I get --
4 COMMISSIONER KIMMINAU: -- the point, so --
5 MR. MCKINZY: So --
6 COMMISSIONER KIMMINAU: -- expecting her to agree with you --
8 COMMISSIONER KIMMINAU: -- is a little farfetched.
10 BY MR. MCKINZY:
11 Q. So, approximately, in total, there was approximately $25,000 that was found
12 from this other litigation coming from previous credit or the maintenance from the
13 401(k), the previous from the spouse support from the 401(k), the previous tax
14 interception and was not credited and the emancipation of the minor child and the
15 credit, all that resulted from this litigation; isn’t that correct?
16 A. I just don’t know how to address that fully. All I know is that when this stuff
17 came up, we just addressed it.
18 Q. All right.
19 A. That’s all I can say.
20 Q. And I’m -- I’m just not wanting you to agree, but there was the credit that
21 was given that had not previously --
22 A. Every credit that you needed that belonged to you that was foreseeable that
23 was right to be credited, you have it.
24 MR. MCKINZY: You’ve got it as of today. But prior to the filing, had every
25 credit been given?
221
1 COMMISSIONER KIMMINAU: We’ve -- we’ve covered this --
3 COMMISSIONER KIMMINAU: -- many times.
5 COMMISSIONER KIMMINAU: I -- it’s already answered, okay?
7 COMMISSIONER KIMMINAU: And -- and I get it. I understand how
8 much was credited after the case was filed.
10 MS. HESSENFLOW: Nothing.
11 MR. MCKINZY: Okay. I rest, Your Honor.
12 COMMISSIONER KIMMINAU: Any further questions?
13 MS. HESSENFLOW: Yes, very briefly.
14 REDIRECT EXAMINATION BY MS. HESSENFLOW:
15 Q. We filed affidavits of credit in 2007 and ‘8 for the annuity for child support,
16 the annuity for maintenance, and those are present on the court records. Those were
17 not given as part of this case? They’ve been there for almost a decade, correct?
18 A. Yes.
19 Q. And the Court can see the entries for those. They’re found in the ’02 and the
20 ’01 subcases, correct?
21 A. Correct.
22 Q. Now, I’m going to hand you one more time Respondent’s Exhibit 54, which
23 is his affidavit pro se for termination of child support. He filed that on June 5, 2015,
24 correct?
25 A. Correct.
222
1 Q. You responded to his pro se motion, correct?
2 A. Correct.
3 Q. Your youngest son had already been administratively emancipated on
4 February 11, 2011 -- 12/2011, his 21st birthday, correct?
5 A. Correct.
6 Q. You didn’t have to do a thing? He was done, he was emancipated, correct?
7 A. Correct.
8 Q. You, however, gave him a $10,000 credit and responded to this affidavit,
9 correct?
10 A. Correct.
11 Q. Didn’t have to?
12 A. Didn’t have to.
13 Q. And that is in no way a result of the September motion he filed for
14 modification and declaratory judgment? That credit did not emanate from this
15 litigation at all, did it?
16 A. No.
17 Q. Now, would you be more than happy to set aside this emancipation and to
18 allow the 2012 administrative to stay and to tack another $10,000 back on if that’s --
19 COMMISSIONER KIMMINAU: Let’s not go backwards, Ms. Hessenflow.
20 MS. HESSENFLOW: All right.
22 Q. In no way emanated from this case, correct?
23 A. No.
24 Q. There is not a single credit that he is receiving other than one for taxes; is that
25 correct?
223
1 A. Right.
2 Q. And we found that?
3 A. Right.
4 Q. When we were looking through the documents?
5 A. Right.
6 Q. Should you have to pay thousands of dollars in attorney’s fees because you
7 found an additional credit that we gave him because he was entitled to it because it
8 was the right thing to do?
9 A. Right.
10 Q. That’s not showing on the child support printout?
11 A. No, it’s not.
12 Q. He hasn’t filed a motion to get it?
13 A. No.
14 Q. The only place you’ll find that credit is on my little printouts of interest and
15 arrearages, and we’d be happy to take that off as well, correct?
16 A. Correct.
17 MS. HESSENFLOW: Nothing further.
18 COMMISSIONER KIMMINAU: You may step down, ma’am.
19 THE WITNESS: All right.
20 COMMISSIONER KIMMINAU: Take a look at your calendars, if you
21 would.
22 What -- what hours do you work, Mr. McKinzy?
23 MR. MCKINZY: I work 6:00 to -- 6:00 p.m. to 6:00 a.m.
24 COMMISSIONER KIMMINAU: It’s going to be hard to get in here without
25 you missing some work.
224
1 MR. MCKINZY: I’ll get in here as needed. I can take off a day.
2 COMMISSIONER KIMMINAU: Okay. How about take a look at March
3 16, which is a Thursday?
4 MS. HESSENFLOW: I’m sorry, Your Honor, what date?
5 COMMISSIONER KIMMINAU: Well, I’ve got March 15 in the morning,
6 I’ve got various parts of March 16 and 17.
7 MS. HESSENFLOW: Any of those days are fine with me.
8 COMMISSIONER KIMMINAU: Well, I’m not going to give you a whole
9 day. We’re only going to need a couple of hours at --
10 MS. HESSENFLOW: No.
11 COMMISSIONER KIMMINAU: -- at most.
12 MS. HESSENFLOW: At most. Is the stuff off, and here’s a bill.
13 COMMISSIONER KIMMINAU: And -- and so I’m available at 9:00 on the
14 15th of March, if you’re available, Mr. McKinzy.
15 MR. MCKINZY: I should be able to make myself available.
16 COMMISSIONER KIMMINAU: All right. Good. So the review -- the 60-
17 day review will take place March 15 at 9:00 a.m.
18 MR. MCKINZY: I want to make it to the Court’s attention that some of the -
19 - the potential filings were not directly from me, that other people were able to -- I --
20 I will attempt all filings that I produced. There are other independent postings that I
21 will not have access to. I would like to confer with --
22 COMMISSIONER KIMMINAU: Are you talking about the protective
23 order?
25 COMMISSIONER KIMMINAU: What is it you can’t bring -- pull down?
225
1 MR. MCKINZY: If someone has went in and downloaded it and posted it
2 independent of me.
4 MS. HESSENFLOW: I know how to get them off. We can join the sites. It
5 will cost him a whole lot of money to do that, so I suggest he make every effort to do
6 it on his own.
7 COMMISSIONER KIMMINAU: Can you contact those that might have this
8 -- access to these documents and tell them to cease and desist?
9 MR. MCKINZY: Well, it’s not individuals I know. I just know that that’s
10 the -- where I’ve gotten documents in the past is when they view them, you have the
11 ability to download them. And once you download them, you can do as you please.
12 It’s not an individual that I’m associated with, but I --
13 MS. HESSENFLOW: Well, I’m not going to -- I’m not going to go to
14 people’s houses and see if they have this stuff.
15 MR. MCKINZY: No.
16 MS. HESSENFLOW: If they’ve downloaded it, they’ve printed it out,
17 they’ve done it. It needs to be off of public access sites.
18 COMMISSIONER KIMMINAU: So that nobody else can do that in the
19 future, is what we’re talking about --
20 MS. HESSENFLOW: Yeah.
22 COMMISSIONER KIMMINAU: -- right?
23 MR. MCKINZY: I can do all -- all that I personally --
24 COMMISSIONER KIMMINAU: Immediately.
25 MR. MCKINZY: Yes, I --
226
1 COMMISSIONER KIMMINAU: Immediately.
2 MR. MCKINZY: -- plan on doing it tonight.
3 UNIDENTIFIED SPEAKER: Right away.
4 COMMISSIONER KIMMINAU: And we’ll -- we will be back here on the
5 15th at 9:00 to make sure that that’s been done. I will write to the two of you as I
6 review the evidence and determine whether or not attorney fees are in play. And if
7 so, you can then bring your bill, send a copy to him or present it at trial and let him
8 look at it so we can further determine what, if any -- how much, if any, fees are going
9 to be added.
10 In the meantime, prior to the 15th, you’re both invited to submit to me your
11 proposed judgment regarding the issues. I know you’re pro se, but I’ve seen a lot of
12 pleadings filed by you. So if you want to give me a proposed judgment with
13 suggested findings and conclusions, then you’re free to do that, and I’ll ask
14 Ms. Hessenflow to do the same.
15 MR. MCKINZY: What is the due date?
16 COMMISSIONER KIMMINAU: Well, I’d like to have it -- why don’t we
17 make it a couple days before the 15th? Or I’m fine with doing it on the 15th. And
18 the judgment then will be entered shortly thereafter. So get it to me by that time.
19 MR. MCKINZY: Okay. To --
21 MR. MCKINZY: -- the clerk’s email?
22 COMMISSIONER KIMMINAU: Yeah, you don’t need to e-file it. Just
23 email it to the --
25 COMMISSIONER KIMMINAU: -- to -- to the clerks.
227
2 COMMISSIONER KIMMINAU: And then we’ll -- I’ll take a look at it and
3 have the matter under advisement pending our review on the 15th.
5 COMMISSIONER KIMMINAU: Acceptable?
6 MS. HESSENFLOW: Yes, thank you, Your Honor.
7 COMMISSIONER KIMMINAU: Thank you all. We’re adjourned. Well,
8 before we do, let’s -- let’s make sure I’ve got all the right exhibits in front of me here,
9 because we’ve -- they’ve been flying around fast and furious. From the Petitioner, I
10 have --
11 MS. HESSENFLOW: Wait just one moment. Let me grab my list that I
12 have put who knows where here.
13 Carletha, do you see my exhibit list?
14 MS. GASTON: Is this it?
15 COMMISSIONER KIMMINAU: I have your exhibit list.
16 MS. HESSENFLOW: Yes, that’s it. Thank you. All right.
17 COMMISSIONER KIMMINAU: Let me get Mr. -- we’ll start with the
18 Petitioner, and I want to get these in order first.
19 All right. Are you ready?
21 COMMISSIONER KIMMINAU: Here’s what I have from the Petitioner. I
22 have 102, which is a Form 14 from years ago. I have 133, an affidavit of credit; 134,
23 another affidavit of credit. The first one was referencing maintenance, the second
24 one child support. I have Exhibit 136, which is a letter addressed to Mr. McKinzy
25 from Department of Social Services. I have 137, which is a letter addressed to
228
1 Mr. McKinzy from Child Support Specialist. I have 162, which is Mr. McKinzy’s --
2 well, actually, it’s -- it was offered by Mr. McKinzy. It is the asset and debt
3 statement of the Respondent, Ms. Gaston. I have 163, which is the modification
4 income and expense statement of Ms. Gaston. I have 164, which are the UMB Bank
5 accounts, and 165, which are additional UMB Bank accounts. And I have 166,
6 which is the W-2 of Ms. Gaston.
7 Did I miss anything, Mr. --
9 COMMISSIONER KIMMINAU: That’s everything?
11 COMMISSIONER KIMMINAU: All right. From the Respondent, I have
12 No. 1, which is the judgment of dissolution, which was entered back in May of 2016.
13 I have No. 4, which was an entry of appearance of Michael McKinzy in the
14 administrative case in -- heard here in May of 2016. I have Respondent’s 6, which is
15 a modification statement of assets and debts of Mr. McKinzy. I have No. 9, which is
16 Mr. McKinzy’s application and affidavit of financial status, number -- which was
17 also offered back in May of 2016. I have No. 11, which is recent cash donations to
18 Smithsonian Institution, which Mr. McKinzy denies making. I have No. 13, which
19 was -- 13, 15, 17, and 18, all of which were offered back in May of 2016; 13 being
20 the affidavit of credit by custodial parent in the amount of 10,722; 15 being the
21 payment detailed history report outlining past due maintenance and child support
22 through April of 2016; No. 17, which is the affidavit of credit for maintenance of
23 3,208; and No. 18, the affidavit administrative credit for the -- well, what is it?
24 That’s the child support affidavit of credit based on the -- the QDRO division of
25 14,421. No. 19, order of 6/1/10, dismissing Mr. McKinzy’s federal -- Kansas federal
229
1 case against the Family Support Division; No. 20, documents regarding McKinzy v.
2 KC P&L; 21, a printout showing a sampling of the -- of filings by Mr. McKinzy in
3 federal court over the ten-year period; 22 and 23 and 25 were received in May 2016.
4 22 is the proposed modification decision and order nunc pro tunc dated 12/12/07. 23
5 is the judgment confirming the administrative modification by Judge Campbell. 25
6 was the obligor’s payment history showing all support paid and credited as of
7 4/13/16. 26 was received in May 2016, delinquent maintenance, child support, and
8 interest calculation through April 13, 2016. 27, letter from Director of Family
9 Support Office of Governor Matt Blunt, dated March 6, 2008. 28, 29, 30, 31, 32, 33
10 were all admitted in May 2016. 28, excerpts from Petitioner’s Google Plus site. 29,
11 obligor’s payment history as of 4/13/2016. 30 is a certified payment detailed history
12 report for administrative case 02MC201872. 31 was certification the circuit court
13 filed 7/10/01. 32, administrative paternity and child support order. 33, billing
14 statement and arrearage notice dated 11/3/06. 36, admitted in May of 2016, order of
15 consolidation. 40, motion for summary judgment regarding void administrative child
16 support, filed by Mr. McKinzy today, actually. 42, Petitioner’s year-to-date pay
17 records for 2016 through June 11. 43, Jackson County property ownership account
18 summaries. 45, email correspondence between Mr. McKinzy, Governor Nixon’s
19 office, and Family Support Division. 50, contract for legal services between
20 Respondent and her attorney. 51 is a 2010 Western District order enjoining
21 Petitioner from filing additional repetitive litigation, et cetera. 53, Petitioner’s 2015
22 wage summary from Hillshire Brands through December of 2015. 54 is the
23 Petitioner’s affidavit for termination of child support dated 6/5/15. 58, a duplicate
24 copy of -- of Petitioner’s year-to-date 2016 pay statement. 60, copy of Petitioner’s
25 motion -- modification income and expense statement. 65, Petitioner’s February
230
1 2016 letter sent to President Obama. 72, docket entries from 02FC200809. 75, email
2 transmission of completed admissions responses and coordinating certificates. 78,
3 email transmission of completed discovery responses and coordinating certificates.
4 That’s what I have. Am I missing anything?
5 MS. HESSENFLOW: Your Honor, I have 46, 47, 48, 49. Those were the
6 four modification income and expense statements. The one showed the summer, the
7 one showed the holiday, the one showed the school year, one was an average. I
8 believe I offered all four of those into evidence.
9 COMMISSIONER KIMMINAU: 46?
10 MS. HESSENFLOW: 46, 47, 48, 49.
11 COMMISSIONER KIMMINAU: You are correct.
12 MS. HESSENFLOW: Your Honor, the only other one I had was --
13 COMMISSIONER KIMMINAU: 46 is the Respondent’s modification
14 income and expense statement, as is 47, 48, and 49, for various combinations of the
15 year. What else, if anything, Ms. Hessenflow?
16 MS. HESSENFLOW: Your Honor, I believe it was 52, which was -- let me
17 double check here. That was the wage withholding that’s currently in effect, and I
18 offered it -- that we were asking that that amount continue and not go up. If it’s not
19 in, that’s fine, but I thought I had offered it. I had a little checkmark on it.
20 COMMISSIONER KIMMINAU: I know you talked about it. All right. 52
21 is received, which is the -- the Child Support Enforcement’s current wage
22 withholding order with Hillshire Brands at 236.64 per week. Anything further?
23 MS. HESSENFLOW: Nothing on behalf of the Respondent.
24 COMMISSIONER KIMMINAU: All right. That’s it. We have our
25 instructions. We are adjourned. Thank you very much.
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1 STATE OF TEXAS )
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2 ) ss.
COUNTY OF TARRANT )
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5 I, Shawna L. Anderson, do hereby certify that the foregoing (or attached) is a
6 true and correct transcription, to the best of my ability, of the sound recorded
7 proceedings submitted for transcription in the case styled: Michael McKinzy v.
8 Carletha McKinzy (Gaston), Case No. 02FC200809-04.
10 In witness whereof, I hereby sign this date: 12/7/2017.
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/s/ Shawna L. Anderson
14 Shawna L. Anderson, CET
Certified Electronic Transcriber
15 Official Transcription Vendor for
Office of State Courts Administrator
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1 STATE OF MISSOURI )
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COUNTY OF COLE )
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5 I, Lori Knollmeyer, do hereby certify that the foregoing (or attached) is a true
6 and correct transcription of the sound recorded proceedings submitted for
7 transcription in the case styled: Michael McKinzy v. Carletha McKinzy (Gaston),
8 Case No. 02FC200809-04.
9 In compliance with Supreme Court Rule 81.14(e), I further certify that the
10 electronic copy has been scanned for viruses and that it is virus-free.
11 In compliance with Supreme Court Rule 84.18, I further certify that the cost
12 of preparing this transcript is as follows:
13 Transcript:
14 234 pages @ $3.50 per page .................................................... $ 819.00
15 Shipping............................................................................................. $ 5.10
16 Total................................................................................................... $ 824.10
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19 In witness whereof, I hereby sign this date: 12/18/2017.
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22 /s/ Lori A. Knollmeyer
Lori A. Knollmeyer, CCR, CER, CET
23 Transcription Supervisor
Office of State Courts Administrator
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Trial Transcript in Case Captioned Michael McKinzy v. Carletha McKinzy Case No. WD81013 Held On Monday January 9, 2017

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Trial Transcript in Case Captioned Michael McKinzy v. Carletha McKinzy Case No. WD81013 Held On Monday January 9, 2017

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1 IN THE MISSOURI COURT OF APPEALS

9 Motion for Default Judgment:

14 Motion to have Admissions Deemed Admitted:

2 THE CLERK: Michael McKinzy v. Carla [sic] McKinzy (Gaston),

4 COMMISSIONER KIMMINAU: Appearances, please.

6 COMMISSIONER KIMMINAU: All right.

7 MS. HESSENFLOW: Sandra Grant Hessenflow on behalf of the

8 Respondent, who’s present in person.

9 COMMISSIONER KIMMINAU: And, Mr. McKinzy, you intend to proceed

10 without an attorney; is that correct?

11 MR. MCKINZY: That is correct, Your Honor.

12 COMMISSIONER KIMMINAU: All right. We have multiple motions to

13 take up prior to the start of the actual evidence.

15 pending. Let’s take them one at a time.

18 the 7th by mail.

19 COMMISSIONER KIMMINAU: 7th of?

20 MR. MCKINZY: January.

21 MS. HESSENFLOW: Saturday night.

22 COMMISSIONER KIMMINAU: Saturday night. I don’t see it on Case.net.

23 MR. MCKINZY: I have a courtesy --

24 COMMISSIONER KIMMINAU: I haven’t had a chance to look at it.

2 MR. MCKINZY: I received pleadings, so I assumed that the -- it was

3 reopened. The guardian ad litem discovery -- motion.

4 COMMISSIONER KIMMINAU: I’m sorry, the what?

6 Court had extended --

7 COMMISSIONER KIMMINAU: The motion in limine, you mean?

8 MR. MCKINZY: Yes.

9 COMMISSIONER KIMMINAU: All right. Okay. Which is a sanction sort

11 MR. MCKINZY: Okay.

12 COMMISSIONER KIMMINAU: -- as opposed to a new pleading.

14 MS. HESSENFLOW: Your Honor, I am prepared to address that.

15 COMMISSIONER KIMMINAU: All right.

18 we can proceed with that.

19 COMMISSIONER KIMMINAU: All right. Mr. -- since I haven’t seen your

22 COMMISSIONER KIMMINAU: Well, great. I’m not going to read it right

24 MR. MCKINZY: Okay.

25 COMMISSIONER KIMMINAU: I want you to make your argument with

2 motion to modify, which is in the nature of terminating maintenance and determining

3 no arrearages, as I understand it; is that correct?

4 MR. MCKINZY: Declaratory judgment for declaration of rights regarding

6 COMMISSIONER KIMMINAU: Okay. Your motion says you shouldn’t

9 MR. MCKINZY: Right.

10 COMMISSIONER KIMMINAU: -- in your case, correct?

11 MR. MCKINZY: And I declared that I didn’t owe any.

12 COMMISSIONER KIMMINAU: Right. All right. So your -- your

15 MR. MCKINZY: That’s correct.

16 COMMISSIONER KIMMINAU: And then you withdrew it in early May of

18 MR. MCKINZY: That is correct.

19 COMMISSIONER KIMMINAU: So what is this new motion for summary

2 COMMISSIONER KIMMINAU: This is the judgment of 2002?

3 MR. MCKINZY: The original.

4 COMMISSIONER KIMMINAU: So 15 years ago?

6 COMMISSIONER KIMMINAU: Why is it now being raised Saturday night

7 before Monday morning trial?

8 MR. MCKINZY: Because after preparation, I discovered that there was

11 COMMISSIONER KIMMINAU: You’re -- you’re suggesting that there was

12 no proper notice; is that right?

14 establishment order by the Division of Child Support Services.

15 COMMISSIONER KIMMINAU: All right. Anything further from you?

16 MR. MCKINZY: Regarding the motion?

17 COMMISSIONER KIMMINAU: Yeah, that motion. We’ll get to the others.

19 East 87th Street as a family.

20 COMMISSIONER KIMMINAU: Just -- just a second.