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CA 97-3119 & CA 97-3120

John Murtari, Oral Argument, 30 minutes requested.

State of New York

Supreme Court

Appellate Division - Fourth Judicial Department












John Murtari





John Murtari
Pro Se, Defendant-Appellant
45 East Oneida Street
Baldwinsville, New York 13027
Telephone: 315-638-7426

Table of Contents

This Brief contains the Appellant’s response to the following issues raised below in the Respondent’s Brief.

Page #

Motive …………………………………………………………..…... 3

Misrepresentations of the Record on Appeal ……….…….… 4

Defendant attempted to delay of Proceedings ………………….. 12

Distortion of Documentary evidence ……………………………… 13

Defendant attempted to control every aspect of Plaintiff’s life .… 17

Credibility of Witnesses ………………………………………….. 18

Custody of Domenic ……………………………………………….. 20

Equitable Distribution …………………………………………….. 30

Constitutional Issues ……………………………………………….. 32

Conclusion ………………………………………………… 35


The record consists of 4 volumes:
Volume 1 (R1-R326) - required documents, pre-trial motions
Volume 2 (R330-R665) - trial exhibits, Two copies of VIDEO TAPES separate.

Volume 3 (T1-1 - T1-667) - trial transcript for first appearance

Volume 4 (T2-1 - T2-256) - trial transcript for second appearance
NOTE: Volume 1 does not include all exhibits submitted by Defendant and referenced by pre-trial motions, this was objected to, but directed by the order settling the record (R1-324).


There is certainly a strong precedence for the fact peoples actions, not their words, are according to the true underlying facts and their real motivation.

Neither party is "perfect" in their conduct either as spouses or as parents, nor are they expected to be. Single party allegations are easy to make, and very difficult to disprove once made. In this environment, the motives of the party may help in separating truth from fiction. It is the Appellant’s belief that as the Court reviews the clear evidence and testimony – that it will find a pattern of motivation.

This case is not about a husband, who is "cruel and inhuman" to his wife throughout a marriage, finally ending in her filing for a divorce. This is not about a couple who communicate so poorly they have complete different perspectives of the same situation. This is about a spouse who became dissatisfied with the marriage, gets involved with someone else, and then decides on divorce (a very human occurrence) -- but when her husband refuses, escalates provocative conduct by treating her husband and child in a "difficult" manner. The other spouse is not perfect either, but clearly ends up in a position of attempting to cope with this situation.

Mrs. Murtari had a difficult legal case. She sought a divorce and her husband was not willing. The only real "fault" ground available was "cruel and inhuman" treatment. This complicated the issue of custody. How could Counsel generate a case against Mr. Murtari (he is cruel and inhuman), and also settle for joint custody of the child – it would not be consistent.

Misrepresentations of the Record

Appellant is aware that a Statement of Facts/Brief requires an interpretation of the evidence which would support the Findings of the Trial Court; however, the Respondent’s Brief makes statements which are not supported by the Record citations given, nor any other part of the Record as reviewed by the Appellant. Appellant may be in error (the Record is extensive), and hopes corrections or explanations may be supplied in the Respondent’s Reply Brief.


The record clearly shows that Mrs. Murtari was not a "full time" homemaker and had already developed "business" interests and soon as October 1993, when Domenic was 8 months old

17 Q Mrs. Murtari, in a time frame from October 1993 until

18 November 1993, in two months, you wrote four checks totaling,

19 $6,500. Do you recall the purpose of those expenditures or who

20 they were to?

21 A I think those are the series of checks I wrote to

22 help a friend who started a coffee shop and I managed with my,

23 arranged with my parents to lend the money to this person.

24 Q What was the name of this individual?

25 A Taskale.

In other testimony, the Plaintiff testified about further activity with Mr. Sedat in 1994 (T1-485):

18 Q And were you helping this individual in any way with

19 his business during this time frame of?

20 A I was baking for him.

21 Q Did you receive payment for the work you did?

22 A Yes, yes, I did.

23 Q And during this same time frame October to December,

24 approximately how much did he pay you total?

25 A He was paying me on the average about a hundred

2 dollars a week. That's not taking the ingredients, the what

3 you call expenses. And so $400 a month. Times September,

4 October, November, December. To around January, mid-January or

5 so. Five months.

6 Q Did you report that income on your tax return?

7 A No, I did not.

8 Q Why not?

9 A I didn't really think of that as income.



As stated, this a severe distortion of the petition (R-331). It was prepared with representation of Counsel and it expresses strong concern that Mrs. Murtari could flee the country with the child. Regarding the Japanese language, what Mr. Murtari’s petition actually states is:

7. That on or about early 1994, the Respondent [Mrs. Murtari] began making it very clear to me that she wished to obtain a divorce. That upon information and belief, the Respondent has had and may still be having an affair….

10. That about the same time as Respondent began her campaign for a divorce, her behavior with our child began to change. Knowing that I only know a little Japanese, whenever she and our child are together in my presence she speaks to him only in Japanese. Our son is responding to her in Japanese. I believe this is a deliberate attempt on Respondent’s part to exclude me from all conversations she and the child have and is meant to alienate me from our son …

11. Furthermore, I have no objection to our son speaking Japanese and, in fact, believe it to be of a particular advantage to him to be raised with both knowledge of Japanese and English. As previously stated, each party spends about half of each weekday with our child, which would enable Respondent a large block of time to converse with him in Japanese…. I do, however, strongly object to the Respondent conversing with our son in Japanese when I am with him in an effort to exclude me from interacting with him..

… WHEREFORE, your deponent respectfully requests that this Court issue an order:

(e) Ordering the Respondent to speak English with the child whenever both parties are physically present in the residence…



I do not know the sources in the record for such blanket statements. In his Answer, the Defendant denied all these allegations of cruel & inhuman treatment. The only item which appears to be a "close" fit is that the Defendant, after provocation, did disable the car he normally drove to prevent Mrs. Murtari from using it in the evening (Appellants Brief, p. 49) – she still had her car available.

There are few happily married couple that do not have disagreements. The Plaintiff’s complaint chooses to elevate these items to the level of cruel & inhuman treatment – the Defendant testified honestly about the problems the couple experienced in the marriage and their attempts at resolution. It may be opposing Counsel is referencing that testimony?


Defendant did disclose considerable financial information about his Business during discovery and in direct testimony. There was no "expert" testimony as to value, but all the detailed information was available.

The Defendant also testified as to conversations he and his wife had regarding her income when she had earned a Master’s Degree (T2-95):

5 Q. Mr. Murtari, you were discussing returning to your

6 wife's employment as a piano teacher. You discussed gross

7 figures of what she would make a year. Did she have a nominal

8 hourly rate?

9 A. Yes, she did. The rate was approximately 15 to

10 $20.00 an hour for her students.

11 Q. Did you and your wife have any discussions about what

12 her rate could be?

13 MS. WALSH: I'm going to object.

14 THE COURT: Sustained. You've already given

15 what she earned per year.

16 THE WITNESS: Oh, yes, your Honor. Your Honor,

17 I just want to establish what we had estimated that

18 probably she could make, with her master's degree.

19 THE COURT: Oh, okay, go ahead. This is after

20 the master's degree then we're talking about?

21 THE WITNESS: Yes, your Honor.


23 Q. Mr. Murtari, what did you and your wife anticipate

24 potentially from her earning the master's?

25 MS. WALSH: I'm still going to object, your

2 Honor, something that was anticipated and never

3 occurred. Not being relevant.

4 THE COURT: Did you have a discussion with her

5 and did she tell you she could make more.

6 THE WITNESS: Yes, your Honor, that's what I'm

7 trying to say.

8 THE COURT: You're not quite getting to it that

9 way. It's not what you thought.

10 THE WITNESS: No, no, your Honor.

11 MS. WALSH: Some foundation as to when this

12 occurred and where it occurred.

13 THE COURT: After the master's degree is all I

14 know.

15 THE WITNESS: Yes, your Honor, it occurred

16 roughly in 1991.


18 Q. The discussion between you and Adrianne?

19 A. Yes, your Honor, 1991.

20 Q. When?

21 A. I can't really localize it any more. I can remember

22 specifically we had discussed her instructor, Professor

23 Marvin, who's obviously a very well known pianist, is making

24 $40 an hour. And our discussion was that potentially there

25 were piano instructors who could reach that. And him at $40

2 an hour was quite a bargain, and she might be able to match

3 him. I mean that I definitely remember.

4 Q. And at the time she was getting 15 to 20?

5 A. 15 to 20


Again, the references to the Record in the Respondent’s Brief are misleading. They reference just the Motion papers in the Record. The Interrogatories were referenced as part of the Defendant’s motion (R-202), but when the Record was "settled" by the Trial Court, opposing Counsel objected to their inclusion in the final Record on Appeal. The Trial Court may have had an "opportunity" to review them, but was silent as to their validity when deciding the motion.


This is a grievous understatement, during cross examination Plaintiff admitted to extensive conduct that reasonable people might find objectionable.

Mrs. Murtari refused to assist in preparing a family meal while the couple was living together with Domenic (T1-504):

9 Q Mrs. Murtari, we are going to be talking about the

10 time frame 1995, in February, roughly in February of 1995, who

11 started preparing the family evening meals?

12 A John did.

13 Q And why was that?

14 A Many times I told him that we have a problem as a

15 couple. And I stated that we are going to go through a

16 divorce. And he pretended, he wanted to pretend that nothing

17 was problem he wanted to have family visitation. And I

18 couldn't, that's when I stopped preparing the meal.

19 Q And what did you want to do during that period of

20 time, what had you, your husband was cooking for the entire

21 family had you proposed some other type of solution?

22 A I started cooking for myself. And my son.

23 Q And your son? And John didn't like that idea?

24 A He didn't.


Mrs. Murtari would fail to return home for dinner with family, and kept the company of Mr. Sedat (T1-479):

21 Q Mrs. Murtari, in the timeframe September, October,

22 November, December of 1994, I am talking about that timeframe,

23 just on the average, how many days during a month would you

24 fail to return home for dinner with your son and Domenic, I

25 mean with your husband and Domenic?


2 A Eight, eight to ten times.

3 Q A month?

4 A A month.

5 THE COURT: You have got to speak up.

6 A I am sorry.

7 THE COURT: I didn't get the answer yet what was

8 the answer.

9 Q Eight to ten?

10 A Eight to ten.

11 THE COURT: Eight to ten times?

12 MR. MURTARI: A month.

13 THE COURT: Okay.

14 Q During this, during this same timeframe were there

15 occasions when you would return for dinner, give Domenic his

16 bath and then leave again?

17 A Yes.

18 Q Were there occasions during this timeframe when you

19 might return at 2:00 or 2:30 in the morning?

20 A Yes.

21 Q And if John asked you where you were, late at night

22 or early in the morning, what would you tell him?

23 A I don't recall what I told him.

24 Q Were there times when, that you told him it wasn't

25 his business?

2 A I don't remember.

3 Q During this timeframe of August to December of '94,

4 were there ever times when you would not return home at all at

5 night, where you would sleep somewhere else?

6 A A couple occasions, yes.

7 Q And where were you at those times?

8 A A friend of mine.

9 Q And what is her name?

10 A Mrs. Mu -- Oshida, O.S.H.I.D.A.

11 Q Were there any other places?

12 A No.

13 Q During this same timeframe, at a time like 2:00 in

14 the morning, besides Mrs. Oshida, would anyone have noticed

15 your car anywhere else?

16 MS. WALSH: I am going to object to the form of

17 that question.

18 THE COURT: Yes, sustained. To form of the

19 question.

20 Q At times during this timeframe, at times after

21 midnight and 2:00, between 2:00 in the morning, where else

22 would your car have been parked?

23 A Besides Mrs. Oshida's?

24 Q Yes?

25 A Several other people, one is Taskale. The other


2 person is Mrs. Alpse. A.L.P.S.E. And Dr. and Mrs. Kimura's

3 K.I.R., I am sorry, K.I.M.U.R.A.

15 Q And just to clarify, so your car could have been

16 found at 2:00 in the morning in front of Taskale's?

17 A Yes.

18 Q During this time frame, were you ever alone at a

19 restaurant or bar with another man other than your husband?

20 A I was with Taskale.

Mrs. Murtari would use Japanese with their son when the family was together. She would not use English, but offered to translate so her husband could understand their son (T1-258).

9 Q And Mrs. Murtari, is it true that at this time you

10 began to use more and more Japanese with Domenic and it began

11 to disturb your husband?

12 A It was a natural sequence because from the birth, of

13 Domenic, I always talked to him in Japanese and around that

14 time when he started talking more and more, so, as a result I

15 conversed with him, more in Japanese.

16 Q Is it true that at this same time your husband was

17 trying to seek a compromise here to say, when you were both

18 together in the home at the dinnertime to speak English but

19 when your husband was gone or somewhere else in the house that

20 the Japanese was fine?

21 A I don't remember.

22 Q Do you remember your husband asking you to use

23 English at the dinner table when the three of you were

24 together?

25 A Yes, I also offered him that if he want me to


2 translate I would be glad to do so.

How many parents would feel comfortable in an environment where their own child’s speech must be translated for them?

Attempt to delay and prolong the proceedings.

This is a repeated litany in the Respondent’s Brief. The parties first appeared in front of Judge Major in September of 1995 and the matter came to trial in early April 1996. A total of only six months elapsed to prepare for a "contested" divorce in which all the issues (grounds, custody, and property) were at issue.

The Defendant did bring pretrial motions where he felt it was necessary. This was a "pro se" Defendant who had no first hand knowledge of trial procedure or matrimonial law – and got most of his info from Law Books and brief overviews supplied by Attorney’s he knew. When he felt aggrieved by the process, he requested relief. The Court may certainly review the motions, they are part of the Record.

At times you are "damned if you do, and damned if you don’t." If the Defendant had not asked for a new Psychologist to perform evaluations in pretrial motions, and then objected on APPEAL about her conduct – I’m sure the Respondent’s Brief would have berated the Defendant for not asking for a new Psychologist the moment he felt there was untold bias.


The greatest "grievance" he had was separation from his young Son, a request for more time together is a part of almost every motion made. Certainly the Defendant was aware that only in a speedy trial could this be corrected (that time lost with his child could never be "made up") – but that also had to be balanced against proper preparation. What motive would he possibly have to extending a proceeding that was robbing him of his child, and financially bleeding him dry – pure vengeance??

Mr. Murtari closed his presentation early, at T2-148 the Judge had mention reconvening in February.

Distortion Of Documentary Evidence

Both during trial and in the Respondent’s Brief, opposing Counsel references letters written by the Defendant as examples of his "bad" mental attitude. The Appellant agrees they are good examples of his attitude, but feels they do NOT support the conclusions of the Plaintiff.

Respondent’s Brief, p. 16, In December 1994, Defendant sent out a Christmas card announcing to his friends that the parties were headed toward a divorce (R.665)

This is another tremendous distortion of the Record, the "Christmas card" is a letter sent to family and friends, Exhibit 54 (the last Exhibit), again introduced by the Plaintiff into evidence with similar words at trial. The letter also reconfirms the reasons why Mr. Murtari "lost his good paying job and was fired." An excerpt follows, the Court may decide:


Family and Friends, Christmas 1994

This has been an eventful year! Domenic our son, is now 22 months old and quite a handful. A lot of people used to think I was loud – well he is even louder. His voice just seems to carry. I enjoy watching him and the changes he is going through – every day is a new surprise. When I hold him in my arms I understand the joy my father must have felt at having me as his son after so many years of waiting. [I was my father’s first child, born to him when he was 64 years old - inserted]

He has a basket of stuffed animals which he pretty much ignored until just a few weeks ago . . . When we leave his bedroom he needs mommy or daddy to pick up each of them and carry them with him, and if we forget one we have to go back and get it . . . In a year in which there has been some rough going he has truly been a blessing and a joy – I could have a dozen!

It has been a difficult year for us (I think one for the record books!). Adrianne has wanted us to separate/divorce for about a year now. I have not wanted to go along with this although I expect I may find myself facing a divorce proceeding in the New Year. It is still hard for me to believe that a relationship which was filled with so much love could become so cold. I hate to bring this up at Holiday time, but the people getting this letter are my close family and friends. I always like to be honest and up front about things and I wanted to let you know what was going on!

…I was working on a defense contract here in the local area and suspected that fraudulent test data was being submitted to the government. I made the decision to "blow the whistle" and was fired in August with no warning/no benefits. I was very lucky to find a part time consulting job within about a month. I am looking for a law firm to represent me, but these things take time. It actually turned out to be a good thing. I work mornings till about noon, and Adrianne has a job teaching Japanese at two local colleges. We had been looking for day care for Domenic, but now with Daddy at home in the afternoon things are fine. It also gives me a chance to spend some time with Domenic.

I am trying to keep a positive outlook on things. I still feel pretty lucky (especially to have a child). All the bad news from Bosnia and Rwanda made me very conscious of the suffering so many families are going through. Adrianne and I really have been very fortunate. I pray to understand what is happening to us and trust in God that things will work out for the best. I would like to stay together as a family. This will certainly be a bitter-sweet Christmas.

With Love & Merry Christmas!


The Respondent’s Brief, p. 26, contains the statement, "This is a man who was determined, if possible, to dissipate all of the marital assets and who threatened Plaintiff with the prospect of continuing litigation and endless appeals if she did not submit to his demands. (R. 654-655)"

The Record reference is to a Letter written from the Defendant to the Plaintiff in August of 1996 (between Trial terms), and introduced into evidence by the Plaintiff. In the Record the original letter is hand written, and may be difficult to read – below is a transcribed version (text in bold appears to be basis for above statements?). It is from one spouse to another, from one former lover to another – written in the middle of a terrible ordeal, an attempt to awaken new thought and ideas:



I know you probably don’t like reading my letters, but I hope you will take your time with this one. Its hard to believe but this may be the last personal letter I write to you. Oh ---you are still going to get a lot of legal stuff, probably for years to come. But this may be the last John to Adrianne letter.

I wanted to write this for a while, but kept putting it off. You know, we haven’t really talked for a couple of years now. Some or all of what I say may be wrong – you can ignore it. You can stop reading now and throw it all away – your choice.

Adrianne, what has happened to us? What has happened to you? As I spend time with Domenic (what a wonderful little boy WE have!) – I regret that we are not doing it together – not only for him, but also for ourselves. We are robbing ourselves of memories that will last a lifetime – to replace with what – memories of court!

Adrianne, you are not going to succeed in all this "attack divorce" stuff with Maureen. I used to think she knew what she was doing – but not anymore. It may take a while (3-6 years), but Justice will eventually get done here. I have known men that have had to struggle that long. What is it going to cost you $40,000 - $60,000. And when you eventually lose what is Maureen going to say, "Well, you really didn’t have a case – Well, that stuff with Taskal really hurt." As she deposits all those bucks, she is NOT going to say it was her fault. She was just doing what you wanted.

Adrianne, what do you want? I remember years ago when this first came up you wanted a divorce and joint custody of Domenic – what happened to that? It seems right now you just want to destroy me – at times I can feel your hatred. At times its really scary.

Do you feel you are the victim here, that you were dominated in the relationship by me, that I ruined your career, robbed you out of a happy life, that I misled you? Do you feel I forced you into adultery?

Do you feel that whatever happens to me now – I deserved it. That you can strip me of my home and my son – I deserved it.

Adrianne, come back to reality before you lose it all. I am not trying to bring "us" back together – what we had (and it was a lot) is now gone. I’d like to get this all wrapped up so I can meet someone else and fall in love again with someone who will love me, someone who will always "choose life" and "choose love". Adrianne, in the past few years you haven’t chosen life and you haven’t chosen love.

Maybe you expect a "big" apology from me, but I can’t really help you there. Yes, I have learned a lot and there were things I could have done better (but that is true of anyone). But it doesn’t even compare to having an affair behind your spouse’s back. How could you do that, what happened? Is it my fault again.

This next part may seem funny – but I remember before we were married we went to confession with Fr. Ed. I remember you asking me, "what do I confess?" – what do you think you would have anything to tell him now?

Maybe now the message of Christ may make more sense. How a person can be forgiven no matter what has happened. A person can be reborn and begin life again at any age – a very happy life, a joyful marriage, a wonderful career.

I still think of you when I hear someone play the piano on the radio. You are still the standard I set – it would be a shame to see it all gone.

Adrianne, we can resolve this entire divorce in just a few months, and end all the struggle. But you have to come to a clear understanding of what reality is in your life. You have lived with over controlling and manipulative people – but do not include me as one of them. Do you remember the wonderful world of Mr. K? Do you remember telling me you considered suicide when you were a teenager at home.

Has any good come from all this – not for you or me or Domenic. But I think it did affect a lot of our friends/neighbors – I think a lot of them paused to realize what they had as they watched our marriage explode at close range.

No need to talk to be about this – and please don’t have Maureen call me (I will not be negotiating with her).

Adrianne, I want you to know I don’t regret knowing you and marrying you – I chose love and life (sometimes it doesn’t work out), but I would do it all again. I’m sorry your not happier Adrianne, I really am – but, the reality is, it was your life, your choice.

As I get ready to close – I can’t help but think about how this reminds me of when you were back in Japan, and I was writing you, and things got more and more confused (that is really why I want to go to counseling so we can come to peace about the issues between us).

We had a lot going for us. Dom is starting to ask about our pictures and I tell him mommy & daddy were very happy together. I remember all the good times, and there were a lot! Going on vacations, out to dinner, working around the house. Very nice moments together. That is my reality – we should have been able to survive this.


The other reality is a beautiful boy Domenic, as parents we are going to be involved for the next 15 years. What the heck did Maureen tell you – that you would just be able to take Domenic and forget about me. That’s the trouble when your lawyer has no sense of morality or ethical conduct its just a game. She is not going to have to live with this mess – you are.

Adrianne, Adrianne, Adrianne, my Adrianne – stop, think, pray. Choose life, choose love and your life can be everything you want it to be.







Attempt to control every aspect of plaintiff’s life.

This single statement was the "theme" to this entire proceeding, the words have appeared in the complaint, Plaintiff’s testimony, Law Guardian’s Report, and the report from Dr. Black (the Court appointed Psychologist). The essential item lacking was real proof based on real behavior.

The only people to testify to bizarre behavior were the Plaintiff (who was obviously motivated in seeking a Divorce and needed some type of grounds), and her Psychologist, Dr. Hoenig, who happily confirmed everything she was told by the Plaintiff – but never met Mr. Murtari.

Everyone else somehow generates this "severe" conclusion, but never bases it on REAL behavior. The most telling example is the many hours of home videotape – the comments about alcohol and not feeding a hungry child, and smothering nap time distort what the tapes show, and confirm how far these people were "reaching" to confirm negative conclusions.

The failure of these same people to comment on the obvious parental bond, warmth, and genuine affection between father and child which was shown by tape, and testified to by numerous witnesses, also shows they knew how "weak" their proof was. When you have the facts to support your conclusion, you don’t need to both manufacture and ignore evidence.

Credibility of the Parties and Witnesses

The Record is clear about credibility. As already described in the Appellant’s Brief, p. 47, the Plaintiff was misleading about "adulterous conduct" and a gift letter that was important in establishing both spouses as equal recipients of her parents’ monies. Both this brief and the Appellant’s Brief highlight the approximately $20,000 which the Plaintiff transferred to Mr. Sedat, but which was never shown in her Affidavit of Net Worth. Prior, this brief, the Plaintiff testified the monies did come from here checking account – but that they were a "loan" from her parents to Mr. Sedat (who had never met Mr. Sedat, or had a business relationship with him), T1-359.

Unfortunately, in earlier testimony, opposing Counsel, when questioning the Plaintiff (T1-276) and the Plaintiff’s mother (T1-88,95) about the source of this money – went to great lengths to prove all the transfers from Japan were meant for her use.

Missing Witness Charge

There is a "missing witness" charge -- that the law allows an unfavorable inference to be made if a party fails to call witnesses that would be expected to corroborate their testimony. The failure of the plaintiff to call a SINGLE eye witness or former counselor for the couple speaks volumes! If all the allegations about the Defendant being a "control freak" were true, surely the people who counseled the couple would provide strong corroboration. Not only did the Plaintiff not call them to testify, but they obstructed the Defendant’s ability to get the records or to authorize testimony.

The Plaintiff did not even call Dr. Black, the Court appointed Psychologist who had seen Mr. Murtari and their child together to testify – instead they relied on the second hand testimony of Dr. Hoenig.

Deference due Trial Court

This is certainly a sound principle, but even at a distance the Appellate Court has the opportunity to review extensive testimony from numerous witnesses regarding Mr. Murtari’s character. The opportunity to view videotape showing the home environment. To perhaps find that the "Findings of Fact", which give only one sentence to the warm relationship between father and child – did not really do justice to the actual testimony and evidence presented.

The Appellant certainly concurs that Judge Major was patient in explaining things, and in helping to schedule witnesses to testify. His personal courtesy to all concerned was beyond reproach. Yes, I am not happy with many of his decisions, but he is a gentleman.

Conduct of Defendant/Appellant

As the Court reviews the Record, you should also know you will find not find a single occurrence of an "outburst" by the Defendant, or an uncourteous remark. This includes the many pretrial motions submitted. Again, the Plaintiff accuses the Defendant of being a "control freak" – and not a Dr. Jekyl/Hyde – he does not hide what he is doing, but is oblivious to his conduct. Certainly, some of that behavior would be clearly manifested.

As one could well imagine, Mr. Murtari was taking decisive action to preserve a relationship with a child he held most dear, let that not be confused with a belligerent/controlling attitude.


Custody of Domenic

This is the single most important issue to the Appellant. It has been already covered extensively in the Appellant’s Brief, but this is a response to items raised by the Respondent.

Defendant wanted separate time/households.

From his testimony at Trial, it is clear the Defendant wants both parents to be involved with Domenic and spend equal time with him. This was also noted by the Law Guardian in his reports. By their "actions", it has been the Plaintiff who has continually sought to reduce Domenic’s contact with his father.

When the couple was together, Defendant was genuine about his desire to keep both parents involved with the child (T1-493), Mrs. Murtari’s testimony:

20 Q Last summer, 1995, how long did, what was the period

21 of time in which Mr. Murtari had Domenic at his mother's house,

22 for vacation time?

23 A I took Domenic I think month of July. Mid-June to

24 July, for four weeks. And he had Domenic immediately,

25 immediately two weeks before that. Then he came back, after we

2 came back from Japan, he took Domenic from, for another two

3 weeks after I think a week or ten days later.

4 Q Did you visit them while they are at Domenic's

5 grandmother's house?

6 A No.

7 Q Did Mr. Murtari invite to you visit there if you

8 wanted to?

9 A He said so.

10 Q Did he invite to you come?

11 A He didn't invite, he said if you want to come you can

12 come.

13 Q Did he tell you you were welcome to come if you

14 wanted to come?

15 A I don't remember.

16 Q Mrs. Murtari, I just want to refresh your memory from

17 the deposition taken December 5th 1995, page 37, beginning at

18 line 18:

19 "Question: For the summer of the time period of the summer

20 of 1995, just this summer, isn't it true that John took Domenic

21 to his mother's house for two different two-week periods?

22 "Answer: Yes.

23 "Question: And isn't it true that during this time John

24 told you that you were welcome to visit there if you wanted to

25 come?


2 "Answer: Yes."

3 Is that correct?

4 A I don't remember but that's what is written.

5 Q And why didn't you visit?

6 A Because we already were going through the divorce.

7 And I'm not intending to pretend we are family. As he wanted to.

I’m not intending to pretend we are family

I don’t think anyone wants to "pretend", but wouldn’t it be nice for Domenic (and any other child) if he could see his parent’s amicably together (even though divorced or planning divorce). Two people don’t have to "hate" each other to Divorce, and we have to get away from "blaming" the other person. It is much more positive to realize that yes, people do grow apart and change – but Domenic, your parents are BOTH good people, and they love you very much.

Respondent’s Brief, p. 24 - Instead, the records is full of examples where the Defendant sought to dominate and control the Plaintiff especially regarding her role as a parent.

As asked prior in this brief, where are the citations to actual examples of such behavior -- other than a series of allegations made by the Plaintiff at the opening of the Trial. Using her own admissions, the Appellant’s brief documents a Plaintiff involved in home conduct that was certain to place a strain on any relationship, and with disregard to the impact on their child.

Respondent’s Brief, p. 16 - This was a relatively short marriage of seven years and the standard of proof in a short term marriage is less than … a marriage of long duration.

Appellant noted application of this principal in the case law. I assume that part of its development was based on the reasonable idea, "well, you have excepted living with this person and their habits for the last 10 years – why is it suddenly bothering you now?" Which is in accord with the evidentiary principle that when a person if "wronged", they should "complain" – at that time, and not years later.

This couple had been married seven years, they recognized differences, went to counseling, and decided to have a child in 1993. There is certainly a compelling question to ask, "what happened in 1993?". Certainly Domenic was born, and that can be a source of stress between parents, but most significantly, as shown in this Brief – Mrs. Murtari started a financial/personal relationship with another person. This evidence is clear and unambiguous.

A Child’s View

I don’t think any child wants to hear from Society, "…well Mary, we’re going to let your parent’s divorce pretty easily – you see they were only married 2 years, where, Little Johnny over there, we are going to make his parents try a little harder, they were married 10 years before he was born."

Judge’s, people live up to expectations. I don’t think anyone will say that the 50% divorce rate we have now is better than the 10% rate we had decades ago. Nor will they say we just have 40% more "jerks" in the population. As a lot of studies show, it is a combination of things, and one reason is that we have made it a lot easier.

Society needs to rethink that, especially when their are children involved. Adults need to know that sex is not just about "tickling your groins", and that when you have a child – you are going to act responsibly and you just can’t say "forget it," or "I found someone else," or, "I want my freedom." That when you decide on a child, there really is a "covenant" between ALL of you and barring "cruel and inhuman" conduct, you will be expected to live up to that.

It is too late now for Domenic, and many things could have changed the outcome here, but just perhaps if Divorce had not seemed quite so "easy" – whatever the real issues were here could have been resolved and a family restored.

Respondent’s Brief, p. 14 - The Defendant was never denied visitation by the Plaintiff nor is there any evidence of the Plaintiff attempting to discredit the child’s father or interfere with their relationship.

The Trial Record is silent on this issue; however, in pre trial motions Mr. Murtari submitted several affidavits documenting what he felt was deliberate interference with his relationship with Domenic. Of course, the Appellant assumes that the above statement only refers to activity up to the trial – and is not an assertion regarding the Plaintiff’s conduct since the conclusion of the trial.

Trial Testimony - Defendant called numerous eye witnesses to testify regarding relationship between father and son, excerpts of that testimony rebut statements made by Respondent.

Regarding credibility, a review of the transcripts will show these people had no "ax to grind" against either the Plaintiff or Defendant, and several had been long term friends of the couple. Defendant’s questioning is "open", and almost all were asked if they add "anything to add."

Ms. Peggy Timerson, the couple’s baby-sitter (T1-147):

14 Q Yes, I am sorry let me rephrase the question: If you

15 could just describe any, any incidents you recall with Mr.

16 Murtari and his son that you formed your opinion on?

17 A I felt that you were a very loving, caring father and

18 that Domenic was the No. 1 thing on your mind and you wanted

19 what was best for him. And I even commented you know to my

20 husband how wonderful the father that you were and how much you

21 care about him and his needs. I just thought you were an

22 excellent father.

23 Q And Mrs. Timerson, how about Mrs. Murtari, how did

24 you find her?

25 A Very -- mother, caring, loving, you both were very


2 loving parents.

3 Q Mrs. Timerson, in your time in the home, did you ever

4 you notice any discord between Mr. and Mrs. Murtari?

5 A No.

6 Q Any arguments?

7 A No.

8 Q Did you ever notice any rude conduct of one party

9 toward the other?

10 A No.

11 Q Did you notice any unusual conduct of either party

12 toward their son?

13 A No.

Mr. Jim Von Holtz, Neighbor (T1-309)

21 Q And when did you first meet Mr. Murtari and his son?

22 A Probably two and-a-half three years ago.

23 Q And where did you normally encounter them?

24 A In the cry room at church.

25 Q And is it fair to say that for a period of

2 approximately a year, a year and-a-half that that was regularly

3 where you found each other on Sunday mornings?

4 A Yes very regularly.

5 Q And did you normally sit next to each other?

6 A Yes.

7 Q And so during time you had a pretty good chance to

8 watch Mr. Murtari and his son?

9 A Yes, and we occasionally went outside after church to

10 let the kids play.

11 Q And could you please describe for the Court some of

12 the behavior you noticed?

13 A Just genuine father-son relationship. Nice children

14 playing together. Coming back to their parents. Nothing

15 unusual.

16 Q Did Mr. Murtari seem, as Domenic would wander around

17 the playroom, overly concerned or protective of his son?

18 A Not overly concerned or overly protective.

19 Especially with my kids in there who were running all over the

20 place. Domenic was very tame compared to those.

21 Q And just to expand on one thing so you did observe

22 Domenic, say in scenarios, comfortably in his father's arms?

23 A Yes.

24 Q During the service?

25 A Most often.


2 Q And when did you finally move out of the cry room?

3 A Just recently, probably in the past three or four

4 months when my son was allowed to go to the day-care at church.

5 Q Okay. And at approximately that same time is it true

6 that Mr. Murtari started bringing his son into the main part of

7 the church?

8 A Yes.

9 Q And recently, when did contacts begin with you and

10 Mr. Murtari and his son outside the church?

11 A Probably the past three or four months he would come

12 over on Saturday mornings with the kids play in the morning.

13 Q Is that becoming a regular pattern?

14 A Regular routine. And -- ends up me cleaning the

15 house but it's good for the kids.

16 Q And does Domenic know your son's name?

17 A Yes.

18 Q And does?

19 A My son Chad, they are, he wants to come over all the

20 time. Wants him to play. And he looks forward to going out

21 for a walk to meet up with them.

22 Q And during this timeframe as you have watched John

23 and his son as maturing, again, any unusual behavior or

24 whatever what would you describe for the court's knowledge of

25 the behavior you seen now on these past few months, with

2 Domenic and his son?

3 A I see Domenic still very attached to his father. You

4 know. Looks forward runs up to hug him. And feels protected

5 by him. You know, usually Tar -- if the dog is chasing after

6 him, somebody is right behind, John. You know looks forward --

7 protection from him.

Ms. Amy Murtari, relative of the Defendant and first grade teacher (T1-373):

8 Q And so you've had a chance to observe Mr. Murtari and

9 his son interact together?

10 A I have.

11 Q And could you answer us some of your observations and

12 take your time and certain any specific incidences you recall

13 to please mention those?

14 A It has been my observation that Domenic and his dad

15 are comfortable together. I have always seen them interact

16 like father and son. He's -- Domenic easily goes to his dad to

17 sit on his lap. He easily goes to his dad's for help with when

18 he wants a drink, when he needs to use the bathroom. When my

19 son takes his toy. When it's time for dinner. When he wants a

20 cucumber. -- Play together easily. He played with the

21 children and yet he interacted with his mom -- his dad as well

22 as me and the grandmother. I would say the setting was very

23 comfortable for Domenic. He seemed like a happy then two year

24 old. Going from one person to the other person with toys,

25 without toys. There was water and chalk. He seemed like a


2 happy, comfortable two year old. He was learning to talk of

3 course at the time. There was a lot of language. Dinner

4 times, I remember went smoothly for Dom, maybe not my son but

5 with Dom. It seemed like an easy paced ordinary picnic, with a

6 happy two year old.


17 Q So if they had problems it was done outside of your

18 observations, or are you indicating that they never had any

19 problems?

20 A I am -- I am not indicating they didn't have

21 problems, I am indicating as far as Domenic was concerned, they

22 were both good parents to him even when they were parenting at

23 the same time. Could I give an example to clarify?

24 Q Did they ever not parent at the same time, were they

25 ever both present and they didn't parent at the same time?

2 A Say that again?

3 Q I will ask it a different way?

4 A Okay.

5 Q Did you ever see both parents present but one parent

6 was in charge of the child, it appeared obvious that one parent

7 was in charge of the child?

8 A No, I can't say that, when I saw both parents

9 present, with Domenic, they both seemed to consider him first

10 and taking good care of him despite their difficulties

11 personally.


Ms. Cheryl Kwiek, relative of defendant (T1-403):

11 Q And how do you describe some interactions between

12 Domenic I mean Domenic and his father, I mean what have you

13 noticed in all this time of watching them together, behavior?

14 A Well, I would say, I would certainly say that John is

15 a very, very loving, very devoted father. Very much enjoys his

16 son. Truly enjoys the company of his son. Very aware of

17 Domenic's needs in the way of you know being, being making sure

18 he's know him time for Domenic to have his lunch, maybe earlier

19 one day or later the next depending on Domenic's sleeping

20 schedule. Aware of his needs as far as make sure he has a nap,

21 that type of thing and obviously he puts Domenic first in his

22 life, I think.

23 Q Does Domenic exhibit comfortable behavior with his

24 father?

25 A Oh, yes. Very much so.


2 Q Does he seem comfortable in John's arms?

3 A Oh, yes.

4 Q Does he seem like he goes to him for security?

5 A Yes.

6 Q As you have been watching Domenic and his father

7 interaction, any unusual behavior where Mr. Murtari tried to

8 over-manage his son or stop him from doing things that would

9 have been I guess outside of what you would normally see in a

10 parent child?

11 A Not in my presence. I have never -- I have never

12 exhibited that.

Mr. Vincent Sneary, a past employee of the defendant who had worked with him in the home office (T1-455):

10 Q And what would normally happen at the house for

11 lunch?

12 A If I had brought my lunch I would go up and I would

13 eat in the kitchen, with Mr. Murtari and his son Domenic.

14 Normally Mr. Murtari was cooking lunch, we would all sit down

15 eat for about an half an hour and then I would leave and go

16 back downstairs, and Mr. Murtari would stay and put his son

17 down for a nap.

18 Q And so during this and these lunches would occur how

19 frequently on a weekly basis?

20 A Two to three times a week.

21 Q All right. And what observations do you have of his

22 conduct with his son while they were eating and interacting

23 there around the table?

24 A Everything seemed normal. Somewhat domestic I

25 guess.



2 Q Did Mr. Murtari ever act like he was forcing Domenic

3 to stay at the dinner table?

4 A No.

5 Q Any behavior forcing him to do anything associated

6 with a meal that struck you as unusual as a parent?

7 A No.

8 Q How did Domenic appear in the presence of his father,

9 as far as Domenic's behavior?

10 A The same as any two or three year old would with

11 their parent, respectful happy that he was there. That's about

12 it.

13 Q Did you have an opportunity to his observe Mr.

14 Murtari carrying Domenic around?

15 A On occasion, yes.

16 Q Did Domenic seem comfortable in his arms and at home?

17 A Yes.


5 Q Is it fair to say then you worked in fairly close

6 proximity to each other?

7 A Yes.

8 Q How, behaviorally, how did you find him as an

9 employer, as someone to work with?

10 A John was quite knowledgeable in his field. He taught

11 me quite a few things that I did not know before. He was not

12 an overbearing manager. Offered guidance when he was there.

13 And we, I wouldn't say we ever disagreed on anything but we had

14 different ideas about how something would be done.

15 Q Okay. As far as the business, did Mr. Murtari

16 demonstrate that he was committed to the business and making it

17 a success?

18 MS. WALSH: I am going to object to the form of

19 the question.

20 THE COURT: Overruled. You can answer.

21 A I am sorry, can you repeat the question?

22 Q Did Mr. Murtari, in what ways did he demonstrate to

23 you that he was committed to the business and making it a

24 success?

25 A He seemed quite I don't know how to answer that

2 question. He seemed committed to having the business go. He

3 had quite a personal financial stake in it. He did work hours

4 at night because things were done when I would come in that

5 hadn't been done when I left. And he was quite

6 customer-oriented.








Dissipation of Assets

The above statement, which has a negative connotation, was used frequently in the Respondent’s Brief. It should be made clear to the Court how and why the assets were "dissipated" by the Defendant:

As documented in Appellant’s Brief, Statement of Facts, the Defendant made a deliberate decision to start a business after being fired from his last full time job. His business was incorporated in February of 1995. Some monies were invested in the company, others were loaned, and paid back to the Defendant.

In early 1995 Mrs. Murtari stopped sharing expenses by making Mortgage payments on the home. Defendant, already on a limited income, was forced to assume the entire burden.

The first pre-trial order by Judge Major, in September of 1995 – gave Mrs. Murtari the option to move out of the home if she desired. She did move out of the home. Mr. Murtari had to assume more responsibility for maintenance of the home.

At no point in the Trial Record does she make any significant complaints about something missing or being hidden. Opposing counsel did have complete discovery regarding Mr. Murtari’s personal and corporate finances. There were a few minor items lost/missing, but certainly a good faith effort was made to supply everything – there was nothing to hide.

At no point in the Record is there any evidence that Mr. Murtari wasted any money on frivolous expenses, or performed any hidden transfer of assets to hide them from the Court. The expenses as outlined in the bullets above, essentially accounted for the change in "cash" assets.



Disposition of Home

As previously documented in Appellant’s Brief, the home is in a wonderful neighborhood and a good school district. The Plaintiff appeared to have no desire to remain there, but the Defendant maintains it would provide an excellent environment for Domenic (even as he shares time with each parent).

In contrast to many statements in Respondent’s Brief regarding Defendant’s inability to maintain the home – the Defendant made reasoned testimony about his plan to financial stability. Certainly, the divorce proceeding itself has played havoc with finances and made cost effective loans impossible to secure. However, referencing a work sheet used by the Defendant, not admitted into evidence (Exhibit 39, R-644). The couples equity in the home was $75,000, shared it would amount to $37,000 each.

Against that $37,000 (plus potentially another $12K if split of Company savings plan) due his spouse, the Defendant assumed he would:

Get some credit for many of the furniture items which were taken by the home by his wife.

Get some credit for over 3 years worth of payments and taxes he alone had made on the home.

Get some credit for the value of the Master’s Degree earned by Mrs. Murtari while they were married. This was a significant amount, even with the simplest attempt at valuation.

It seemed quite reasonable to hope for transfer of the home to Mr. Murtari. This return of financial stability would allow Mr. Murtari to secure better financing for his business, and the completion of the divorce proceeding would also end a significant time burden.



Constitutional Issues

Respondent did not know how to respond to the Constitutional issues raised, but summed up by saying (Respondent’s Brief, p. 15), "The law and administration of justice in this area evolved over the years and while not perfect, can not be declared unconstitutional because one litigant had his unreasonable demands denied by the Court."

When Constitutional Change happens

While there are many reasons for change, and sometimes they occur when cases arise which show the "system run wild." I remember reading a book describing development of Constitutional Law, and describing how some of the protection associated with "search warrants" had arisen after a case in which police had with no warning ransacked a ladies home looking for evidence of some crime – they didn’t find what they wanted, but found something else while they were there – and charged her with that anyway.

The protection warranted the parent child relationship

Without repeating the Appellant’s brief. The Supreme Court decisions clearly recognize the State should not interfere here. There are many different parenting styles, and the majority cannot impose their will on the minority. It hardly seems an extension to these principals to afford this bond our greatest protection – that of the Jury. That wonderful collection of people who are equipped with common sense and walk into that Court Room with no bias toward any party, no worry about what the Judge thinks about them, no worry that what they say (as an expert) may effect future referral business in these types of cases. These people haven’t heard the pretrial motions/allegations, but are prepared to hear the evidence.

What this case demonstrates

Judge’s, I’m sure this case has been a headache. Why? Because there is no proof beyond a reasonable doubt here about the Plaintiff’s allegations, and the Appellant would say there is not even a majority of proof. This case should have been "settled", the Plaintiff should have been told by Counsel, "look, John is a good father, Dom loves him, lets agree to the joint physical and legal custody with him – and just try to work out the property issues – negotiate a separation." Obviously, that did not happen.

Gender Bias

The Appellant does not want to join the "victim bandwagon", but proposes this case does not pass the "gender test". Leave the clear facts as they are, and just reverse the sex of the parties. The rulings and finding in the this case then become unbelievable. Mr. Murtari’s Constitutional rights to equal protection were also violated here.

Personal Family Bias

What makes a "good" parent is a tremendously personal decision. I remember a very close relationship with my father as a child and adult. I could always have a seat on his lap, and we shared hugs and kisses into adulthood. Each person reading this Brief has different recollections of their parents – is it fair to call one experience good, another bad? Probably not, they are all different and children are pretty flexible. However – how does one person sit in Judgment over another’s parenting, over the value another parent places on their relationship with their child. Can we really judge this child should spend 30% of the time with mom – in this other case I think 45% would be better? Again, where bias has a strong effect – a group of Juror’s help’s insure the offending conduct is clear to all.

Best Interest of the Child

Appellant hopes a body of law/legislation will grow that clear recognizes the "Best Interest of the Child" is to spend the most amount of time with both Mother and Father in an equal relationship. It is a source of confusion to me how a "custodial" parent can leave a child with day care staff, baby-sitters, and friends all the time – but the amount of time spent with the other parent needs to be closely regulated by a Court. The only exception to this should be if the parent has demonstrated a clear threat to the child. Such a threat that would easily convince a Jury.

More expected of Parents

The State presently requires a "marriage license", how about signing a standard agreement which advises the present "lovebirds" that if a Divorce occurs:

They agree to an equal sharing of time with their child.

Either parent may move out of the home, but the child will continue in school based on that location.

The parents will need to stay in "physical proximity", if they want to see their child.

Less Acrimony

Yes, I believe that if a lot of this is "cast in stone", perhaps these Divorces will become more amicable. Parties will realize they could never convince a Jury, and accept/give equal responsibility.





If there is an inference to be made from the Record on Appeal, it is one that clearly supports the contentions in the Defendant’s original Answer. Mrs. Murtari wanted out of the marriage, and was willing to provoke her husband to go along. Perhaps the Defendant was slow to realize his wife wanted a divorce no matter what happened, and foolish to think they might be able to come together again as a couple for their child. But for Mrs. Murtari to "parade" her infidelity to her spouse and to rip their child out of home environment and away from a loving parent – should give anyone pause to think. We all have our failings, just because we are human. But for a parent not to allow a child to have a full relationship with another parent, and to take a child from a parent just because you can – is disturbing conduct.


The Appellant has worked hard on these Briefs, not only to restore his child – but also to give meaning to this personal disaster. Life is not "fair", Appellant can never make up all the time he has lost with his child – but he has certainly learned a lot about the issues and has become active for change. The Constitutional issues here are not "window dressing to get a next level of Appeal", but real positive actions that can in some way start to fix a system that may be causing more harm than good. With positive dialog things can improve. If you want peace, work for justice – there’s a lot of truth to that.