IN THE CIRCUIT COURT OF GREENE COUNTY, MISSOURI
FAMILY COURT DIVISION
In Re the Marriage of: )
VICKI LORRAINE PERKEL and )
MARC PERKEL )
)
)
VICKI LORRAINE PERKEL, )
Petitioner, ) Case No. 194DR3198
)
vs. )
)
MARC PERKEL )
Respondent, )
IN REGARDS TO HEARING ON RESTRAINING ORDER
AND THE ISSUE OF A NEW TRIAL
==========================================
Dear Judge McGhee,
I have received Mr. Sharp's arguments to revest jurisdiction with the
court in the closed case as styled above. At the hearing on March 31st
1997 you ordered Mr. Sharp to prove the court had jurisdiction and if he
proved it you would rule on the merits of the case.
I would start out your honor by pointing out that you have been
practicing law since before I was born and you know already what the
rules of jurisdiction are. You have been a judge for many years and I
can't imagine it possible that you don't already know what you can and
can not do. I find it unlikely that any argument I make will persuade
you in any way as it is my opinion that you have already made a
determination. And considering that you have already awarded my ex-wife
more than 100% of my assets, I doubt that decision is in my favor. It
has been my experience throughout my life that when I'm face with
pointing out the obvious to a person who should already know the obvious
that I always fail to succeed. And this is one of those instances. I will
however, for the record, proceed to make my points.
JURISDICTION
------------
I have already argued in the record in my notice I sent you and in my
motion before the appellate court my position as to what the rules say.
I will repeat that the rules are clear on this and you do not have
jurisdiction. Rules 75.01 and 81.05(a) clearly put jurisdiction in the
hands of the appellate court and divest jurisdiction from the trial
court. I stand by my arguments. The rules are clear. You're either going
to follow the rules or you aren't.
At trial Mr. Sharp proffered to the court a motion I had made before the
Appellate Court. In that motion I asked the Appellate Court to start an
investigation into Mr. Sharp's conduct as to his suitability to practice
law for having faked a deposition and fraudulently representing to the
court that I failed to attend a deposition that he now admits he
concealed from me if it ever existed at all.
Mr. Sharp falsely stated to the court that issues of jurisdiction were
raised and that the Appellate Court made a jurisdictional ruling in his
favor. I have attached to this letter a copy of my motion and a copy of
the decision. This misrepresentation is in itself a violation of the
Rules of Professional Conduct specifically Rule 3.3 "Candor Toward the
Tribunal" which states that a lawyer shall not knowingly: (1) make a
false statement of material fact or law to a tribunal;". It may come as
a surprise to Mr. Sharp that lawyers aren't allowed to deceive the
court, but there are actually rules that prohibit it. Mr. Sharp should
be sanctioned for his misrepresentation.
Mr. Sharp sites three cases he contends proves the jurisdiction of this
court. Two of these three cases, FIELDER and SAITZ do not deal with the
issue of jurisdiction of the court at all. In these cases Mr. Sharp
seems to be trying to prove his clients right to execute judgement in
the absence of a bond. I have not disputed this issue. Both parties are
bound by the order of the court to perform and neither party has posted
a bond. I am confused as to what Mr. Sharp hopes to gain by arguing a
point that I have already admitted to. Since neither of these two cases
address the issue of jurisdiction, Mr. Sharp does not make an argument.
I admit however the third case LEONE V. LEONE does address jurisdiction
of the court. In that case however the issue was over child custody and
the law makes an exception specifically for family court judges and
grants continuing jurisdiction on issues of child custody and Child
support. Since Mr. Sharp's issue is not child custody, as the marriage
produced no children.
Mr. Sharp was supposed to somehow establish that the court had the
jurisdiction specifically to grant preliminary injunctions. He couldn't
do that because there are no such cases. Your honor, if you grant his
injunction you will be the first judge in the history of the world to do
so.
Had Mr. Sharp sited a case that gave the trial court general
jurisdiction then Mr. Sharp would at least have the beginnings of an
argument. Mr. Sharp again makes no argument that applies to the issues
before this court.
In your ruling you clearly gave Mr. Sharp the burden of proving
jurisdiction to the satisfaction of the court. Mr. Sharp has failed to
site a case or make an argument that addresses the issue of jurisdiction
as it applies to these circumstances. Having failed to make an argument
and again, noting the specific language of the rules, the only
legitimate ruling can be that the court does not have the jurisdiction
to grant the preliminary injunction Mr. Sharp is requesting.
I would point out to you, you honor, for the record, that you have
already decided jurisdiction. I also moved at the hearing that the
question be certified and for immediate appeal and that you denied these
requests. If you act it is not merely in excess of your jurisdiction.
Excess of jurisdiction implies an honest mistake. This would be acting
in reckless disregard for jurisdiction which I contend exceeds the
possibility of honest mistake and is in fact acting in the absence of
all jurisdiction.
I also would point out the old saying that "What's good for the Goose is
good for the Gander." You can't grant the Petitioner jurisdiction and
deny the Respondent jurisdiction. The case is either open or it's not.
And if it's open, it's open for everyone.
PRELIMINARY INJUNCTION
----------------------
As at trial, I continue to argue in the hypothetical. My arguments are
not to be construed as consent to the jurisdiction of this court. I
would point out however that the Petitioner and Mr. Sharp have made a
general appearance by bringing their motion before the court.
To briefly summarize, an injunction must meet three criteria; (1)
immediate and irreparable harm, (2) likelihood of success on the
merits, and (3) maintaining the status quo. All three conditions must be
met to grant an injunction.
Mr. Sharp failed to prove (1) because the Petitioner admits that the lis
pendens is the factor that is preventing the sale of the property.
He fails on (2) because I have sent you a copy of my pleading in my
independent action and it is clear in the record that the judgement was
obtained by fraud upon the court which is reversable under Rule 74.06.
And (3) selling the property hardly maintains that status quo. When the
other two cases are determined the property will probably be worth more
than it is now.
Having failed all three necessary requirements for injunction, the court
should not rule in favor of the Petitioner.
I remind the court that a preliminary injunction by definition expires
upon final judgement. Therefore if an injunction is granted it expires
immediately. The only exception to this is if this preliminary
injunction is preliminary to a new trial. Thus I will interpret a
decision for a preliminary injunction as a decision of the court
granting my motion for new trial. Upon granting a new trial the old
judgement would be void. You can't have one without the other.
If you contend that this preliminary injunction is not an act that
grants a new trial then you are redefining the meaning of preliminary
injunction which remains undefined in the context of being granted after
final judgement. I would think you would have to explain what it is so
that I could send a copy to the folks at Black's Law Dictionary allowing
them to update their definition.
I would also remind the court of Rule 92.02(d) which requires the court
to be specific in it's order should the court decide to ignore the other
rules and grant the Petitioner her amended motion.
In summary:
1) The Court has no jurisdiction to injoin.
2) Petitioner fails to meet any of the three requirements for an
injunction.
3) The concept of preliminary injunction is meaningless in a case
where final judgement has already occurred.
MODIFICATION OF THE DECREE
--------------------------
The divorce decree states in the relevant part:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that petitioner pay the
following debts and hold respondent harmless therefrom: (4) O'Bannon
Bank (on Fair Grove Property)."
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED that the parties execute
such titles or other documents as may be necessary to effectuate the
division of the property as aforesaid; and that the Missouri
Department of Revenue transfer the title to the above-described motor
vehicles to the respective party upon proper application and payment
of the required fees."
This decree is an order for both parties to comply. Petitioner is
ordered to hold me harmless from her debts. My name is still on the loan
and my house is still collateral on the note. The land has sufficient
equity to collateralize itself (35% equity) and the Petitioner has a
good job as personal secretary to the boss of one of Springfield's
largest telecommunication's companies and is making a higher salary than
I am.
But in spite of the order, petitioner has not released my obligation on
the note nor removed my house as collateral. Nor has she or her lawyer
even attempted to contact me to execute these titles to divide the
property. Therefore, in addition to my "Fraud upon the Court" claim, I
contend that the Petitioner's failure to act means that title is not
transferred and that since I have been stuck making her payments that the
property is still mine and the court doesn't have the jurisdiction to
order me off my own property.
For the court to rule that I have to perform under the judgement and the
Petitioner does not is a modification of the final order. I contend that
such a modification of final order, especially on a motion for Temporary
Restraining Order constitutes the granting of consent for a new trial.
CONSENT TO NEW TRIAL
--------------------
I now would like to address another issue I touched upon earlier which
is consent to new trial. At the hearing Mr. Sharp is raising a number of
issues that are unrelated to a motion for a TRO. It is my contention
that by Mr. Sharp's action, words, conduct, motions, and behavior that
he is in fact consenting to a new trial.
Mr. Sharp continues to argue hard that the trial court retains
jurisdiction. Is Mr. Sharp saying that the court only has jurisdiction
to rule on his motions and not my motions? If the court retains
jurisdiction to do the things that he is requesting then at what point
does the jurisdiction of the court end? Normally it ends on the
conclusion of the case which I thought occurred on November 18th 1997.
Surely Mr. Sharp isn't contending that the court open up jurisdiction,
hear his motion, hear all his side issues, rule in his favor, modify the
decree, and then close jurisdiction until the next time he want's
something from the court. By his arguments for jurisdiction of this
court Mr. Sharp admits that the case is in fact not concluded and by his
actions consents to a new trial.
I contend that Mr. Sharp's request of the court that his client be
allowed to be excused from her obligations under the judgement to
"execute such titles or other documents as may be necessary to
effectuate the division of the property" is a request to modify
judgement and thereby constitutes consent to a new trial.
I contend that Mr. Sharp's amended motion for a preliminary injunction
is also a consent to a new trial. The motion itself by definition
forsees a future final judgement which can't occur unless his implied
consent to new trial is granted.
I contend that since the Petitioner asked for the hearing and that she
has made a general appearance before the court, and that she argues that
the court has jurisdiction, that she is consenting that the court at
least has enough jurisdiction to make a finding that a new trial should
be granted. Or in the alternative, that the could should make a
recommendation to the Court of Appeals that a new trial should be
granted.
I contend that Mr. Sharp and his client have made no attempt to comply
in any way with the decree by delivering to me what I am due under the
decree. In fact they continue to act as if the decree never existed as
the continue to ignore the authority of the two other courts where the
case is still active. I contend that their total disregard for the
decree constitutes consent to a new trial.
Mr. Sharp is a seasoned attorney. He has completed law school and he has
passed the Missouri Bar. He knows what the rules are and how the game is
played. Now Mr. Sharp makes a general appearance in court and touches on
a variety of issues such as restraining me from filing notices of lis
pendens, modification of the decree, preliminary injunctions to a future
final decision, and continued jurisdiction of the court. Mr. Sharp
obviously wants to reopen the process.
Your honor, there is no other conclusion that can be drawn other than
that Mr. Sharp is consenting to a new trial. How else can all the
requests Mr. Sharp has made of the court be satisfied except by the
granting of a new trial? I respectfully contend that since Mr. Sharp's
requests of the court can only be satisfied by a new trial that Mr.
Sharp is in effect asking the court for a new trial.
I also want a new trial and we therefore agree on this issue. Should the
court have enough jurisdiction to make a finding, it would be
appropriate for the court to make a finding that the Petitioner has in
fact consented to a new trial. And on the basis of mutual consent (and
the withdraw of my appeal) then Rule 95.01 would give this court the
jurisdiction to order a new trial. I would be willing to have an
informal hearing to negotiate this possibility.
Besides, your honor, as you can see neither side is complying with your
order, nor does either side intend to comply with it. The order is
impossible for both parties to comply with and I think the fact that
neither side is complying and that we both want issues heard constitutes
mutual agreement for a new trial. How else can this court claim to have
jurisdiction except in the expectation of a new trial? The fact that
both parties refuses to comply with the order of the court can only be
interpreted as mutual consent to a new trial.
I may be interested in negotiating the possibilities of moving in that
direction. I have not disposed of any asset that Petitioner contends is
marital property and I think that arrangements could be made to preserve
the status quo. Greene County has a new family court judge, Judge
Mountjoy, who I know has a good reputation and I would feel comfortable
with hearing a second trial. It also looks like it would cancel out two
other court cases and give you an opportunity to get me out of your
hair. That may not be a good legal argument, but as Mr. Sharp pointed
out at our October 29, 1996 hearing, I am arrogant, and this would be a
good opportunity to get rid of me. Besides, arrogant people deserve
justice too.
Besides, your honor. I'm sure you know by now that the final decree is a
mistake. I will give you the benefit of the doubt that it was an honest
mistake. Especially since you were presented with a mountian of
fraudulent and fabricated evidence to rely on. This is an opportunity
for you to fix this mistake, to right a wrong.
IN CLOSING
----------
On a personal note, I felt the hearings went very well. Although I feel
like your decisions are grossly biased against me (or at least grossly
in error), and that a judgement in excess of 100% of my assets for a 5
year marriage with no children is unfair, that you run your courtroom
well. I have been studying law long and hard and as a programmer I have
a very in depth understanding of logic. The internet has given me
research tools that go beyond the capabilities of traditional law
libraries. I've gotten to where I actually enjoy making legal arguments.
I had wondered how I would do in a trial setting and I feel I can hold
up against the best of them. I'll bet it's been a long time since you
saw a pro se litigant conduct himself better than a lawyer in court. I
am looking forward to representing myself as I think I can represent
myself the way I want to be represented and do a better job than the
last trial. This is your opportinity to right and injustice an you
really ought to do it.
Sincerely,
______________________________________
Marc Perkel * Respondent * 04-07-97
P.S. Attached is a copy of the motion I made before the Court of Appeals
that Mr. Sharp claimed at the hearing was a motion for jurisdiction. I
didn't get to see what he handed you so I'm enclosing a copy of said
motion that is complete and unaltered.
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