Appeal Court Assails Attorney, Returns Child Custody to Father

Times Staff Writer

On May 14, as a San Diego County Superior Court judge took away custody of his daughter, Mark Smarz stood in the court hallway, unaware that the case had been called.

In the 10 1/2 months since, Smarz, a former Navy cook, has battled the child's grandparents and their lawyer for the right to care for his daughter, Olivia Smarz, now 2 1/2, in court forums that seemed stacked against him at every turn.

Smarz claimed he received late notice, or no notice, of critical hearings. The testimony against him in court seemed full of misrepresentations. He was forced to pay nearly $17,500 in legal fees to fight proceedings that his attorneys told him were groundless under California law--proceedings that threatened to land him in jail in Connecticut, where he had taken Olivia in defiance of the Superior Court order.

Now, a state appellate court has ruled that the system, indeed, mistreated Smarz. In an uncompromisingly harsh decision, the 4th District Court of Appeal this week restored legal custody of Olivia to her father.

And in a judgment that stunned family law attorneys with its toughness, the court said that the sometimes "inexcusable" tactics of his in-laws and their lawyer justified an order that they be required to pay all of Smarz's legal bills in the dispute.

"It is our opinion that the illegality of this proceeding from its outset, and the conduct of (the grandparents') attorney . . . warrants sanctions to be imposed," Presiding Justice Daniel Kremer wrote for a three-judge appellate panel.

Typically, court-ordered sanctions amount to a $200 to $500 slap on an attorney's wrist for running afoul of court rules. But the appellate court decision requires Chula Vista lawyer George Ronis and the grandparents, Ben and Consepsion Dancan of Bonita, to pay Smarz more than $17,500.

"That's absolutely astounding," Lee Lawless, a member of the family law committee of the San Diego County Bar Assn., said when told of the court's decision. "My guess would be this is almost a way of saying, 'You're going to pay the other side's fees because this was a sham.' "

A jubilant Janet Sobel, the San Diego attorney who represented Smarz in the appeal, said Wednesday that the ruling reflected the appellate judges' dismay at the courts' misuse in the case. "The courts and legislature create a set of rules to make sure these kinds of things don't happen," she said. "When those rules are disregarded, it causes a lot of suffering."

But Sondra Puglisi, an attorney who worked with Ronis on the case, said Wednesday that the court-ordered sanctions were "wholly unwarranted" and would be appealed to the California Supreme Court.

"We were shocked, to say the least, and rather indignant," she said. "The opinion is just so one-sided. It doesn't seem to take into consideration any of (our) pleadings."

The 20-page court opinion generally places credence in Smarz's account of the months-long battle with his in-laws for custody of Olivia following the death of his wife, Maryann, from epilepsy and leukemia in January, 1985.

According to the decision, the Dancans often helped care for Olivia from the time of her birth, because her mother was ill and her father, who was stationed at North Island Naval Air Station, frequently was away.

After his wife died, Smarz made plans to take the child back to his parents' home in Shelton, Conn., once he was discharged from the Navy in May, 1985. But he agreed that Olivia could stay with the Dancans until he was ready to leave the San Diego area.

Soon, Smarz concluded that the Dancans were interfering with his contact with the child, accord ing to court documents. When he wanted to take Olivia to Connecticut on vacation, Ben Dancan insisted that he accompany them. Fed up, Smarz picked up his daughter one afternoon last April, told his in-laws he was taking her to a nearby park and got on a plane to Connecticut, where Olivia has remained ever since.

The custody battle quickly was joined. A few weeks after Smarz left for Connecticut, the Dancans went to court in San Diego to gain custody of Olivia, alleging Smarz had a drug problem and was not fit to care for his daughter.

A hearing was scheduled May 14, but Smarz received notice of it only five days before. Unable to hire a lawyer in time, he went to court intending to seek a delay. But though the Dancans had seen him in the hallway, Smarz missed the announcement that his case had been called, and neither the Dancans nor Ronis told Superior Court Judge Robert Thaxton that he was nearby, the opinion says.

Thaxton issued an order giving the Dancans custody of Olivia--an order which Ronis' law clerk promptly served on Smarz in the hallway outside the courtroom.

Another hearing to finalize the order was scheduled for June 28. Though the appellate court says Ronis knew Smarz had moved, he sent notice of the hearing to Smarz's old address in Chula Vista. Again, the hearing was held in Smarz's absence and the Dancans' custody order remained in force.

Subsequently, the Dancans--alleging that Smarz had ignored the order to return Olivia to them--obtained an arrest warrant in Connecticut charging him with interfering with their custody, a misdemeanor. Smarz was arraigned on the charge in September and required to post a bond of $3,500, Sobel said, though the charge later was dismissed.

Throughout the legal tug-of-war, the appellate judges ruled, Ronis and the Dancans flirted with the bounds of propriety.

The court questions Ronis' role in Smarz's failure to appear at the May hearing: "One . . . wonders why Ronis or his clerk could not find Mark to tell him the matter was called, although they had no trouble finding him after the hearing to serve him with the order." Ben Dancan, by allowing the hearing to go forward though he knew Smarz was nearby, engaged in "misrepresentation," the judges said.

Moreover, the ruling says Ronis' failure to notify Smarz of the June hearing was "inexcusable" and that some of the information he and the Dancans offered during the Superior Court hearings "implies deliberate misrepresentation."

In essence, Kremer's decision said, Smarz lost legal custody of his daughter by default, even though California law says a parent can be stripped of his right to raise his child only if "clear and convincing evidence" shows continued parental custody would hurt the child.

Smarz denied the allegations of drug abuse and insisted he was a fit parent.

"What was really offensive about what happened in this case is that it had been done in such an unlawful manner," Sobel said. "The right to parent is just a critically valuable and important right of every citizen."

Smarz declined through Sobel to discuss the case, saying he did not want to prompt further hostilities with his in-laws.

Puglisi insisted that Ronis and the Dancans had acted properly throughout the dispute. Smarz was late arriving for the first hearing, she said, and even if the Dancans did see him, they had no idea they had any responsibility for his appearing in court.

All the attempts to notify Smarz of the various hearings followed court rules, she added, and none of the information Ronis and the Dancans related in various proceedings was false or misleading.

"No one was trying to sever his parental rights," Puglisi said. "We were just trying to determine what was best for the child."

Meanwhile, the Dancans are now the ones who have lost faith in the court system, Puglisi said.

"They feel a great loss," she said. "They want to see their granddaughter. They want her to know them."

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