COURT OF APPEALS OF OHIO
ELEVENTH APPELLATE DISTRICT
GAIL S. BRAHIER :CASE NO. 92-G-1705
PLAINTIFF-APPELLEE :COURT CASE NO.91-DC-000792
- vs -
MAURICE E. BRAHIER :MOTION FOR LEAVE TO SUBMIT
DEFENDANT-APPELLANT :REPLY PURSUANT TO
C/O NEWMAN, LEARY & BRICE :JUDGEMENT RENDERED 12-1-92
214 EAST PARK STREET
CHARDON, OHIO 44024 :MOTION TO SUBMIT REPLY
:TO APPELLEE'S MOTION FOR
:AWARD OF LEGAL FEES
:FOR DEFENCE OF APPEAL
:OR REMAND TO TRIAL COURT
:FOR HEARING ON MOTION
:re:JUDGEMENT RENDERED
:12-10-92 (THREE MONTHS
:AFTER SUBMISSION OF
:DOCUMENT ON 9-10-92);
1. Now comes the defendant-appellant, Maurice E. Brahier, to
request leave from the court to submit his reply to the
court to comply with judgement rendered by the appellate
12-10-92. The defendant requests the order of submission be
granted.
2. Now comes the defendant-appellant, Maurice E. Brahier to
submit his reply to plaintiff-appellee's motion and request.
The appellate has already rendered a judgement concerning
this request from the defendant and reply from the plaintiff.
Respecting, though questioning that judgement through a Civ
R 52 request,OVERRULED, the defendant has submitted request
to the court to: BRING FORTH THE RECORDS AND TRANSCRIPT
NECCESSARY FOR THE APPEAL; PROVIDE TRANSCRIPT NECCESSARY FOR
THE APPEAL; PROVIDE TRANSCRIPT AT PUBLIC EXPENSE; OR, DEFER
COST UNTIL AFTER JUDGEMENT(cost presented when..); STAY
PENDING APPEAL, presented to the court 11-27-92, basis of
being found indigent at the common pleas level for a contempt
hearing. The defendant is submitting on this date, with this
paper, a REQUEST FOR LEAVE TO ATTACH/MODIFY PLEADING/REQUESTS
above with an affidavit of poverty. The above stated
requests/motions would appear to make this presentation a
moot response. The defendant request that this be made part
of the record regardless of that fact. To have this ordered
now will ensure that this state will continue to hold the
defendant and children under duress, in violation of law, for
an additional lenthy time period beyond the almost two years
in which the plaintiff and this state have held them. The
appellate will have to accept the brief as presented by a
common man attempting to present the facts, to the best of
his limited ability, and requests pursuant to those motions
and brief, to ensure, at least some measure of right and
protection, to the defendant and children of this action.
a. SUBMISSION OF REPLY TO PLAINTIFF'S MOTION FOR AWARD OF
LEGAL FEES FOR DEFENCE OF APPEAL OR REMAND TO TRIAL COURT
FOR HEARING ON MOTION
To not allow the order requested by the defendant will
insure technicalities, errors, submission of possible
mis-statements, referals to law, and other legally binding or
prosecutable circumstances to occur which will ultimately
cause dismissal or affirmation of the judgement, and possibly
some form of charge or charges to be brought against me,
contrary to the best interest of the children and myself,
which would appear to be in violation of Equal Protection
and Due Procees inclusions in the Constitution of the State
of Ohio and The United States Constitution and the due
process of law.
The matter before the Court of Appeals is one which submits
possible error in judgement due to matters which were
presented to the Court of Common Pleas. To me, these errors
might bring forth the question of plausible continued contact
or ruling submitted by the Court of Common Pleas. This
presentation and the previous, are presented in that light.
IN SUPPORT OF REPRESENTATION AND APPELLATE DISCRETIONARY
POWERS CONCERNING REPRESENTATION AND COSTS, DEFENDANT RIGHTS
In the Constitution of the United States the court finds:
Article IV Section 2(1)
The citizens of each State shall be entitled to all
privileges and immunities of citizens in the several States.
Article V
No person shall be held to answer for a capital, or
otherwise infamous crime, unless on a presentment or
indictment of a grand jury, except in cases arising in the
land or navel forces, or in the ÿmilita, when in actual
service in time of war or public danger; nor shall any person
be subject for the same offence to be twice put into jeopardy
of life or limb; nor shall be compelled in any criminal case
to be a witness against himself, nor be deprived of life,
liberty, or property, without due process of law; nor shall
private property be taken for public use, without just
compensation.
Article VIII
Excessive bail shall not be required, nor excessive fines
imposed, nor cruel and unusual punishments inflicted.
Article XIV SECTION 1
All persons born or naturalized in the United States, and
subject to the jurisdiction thereof, are citizens and of the
State wherein they reside. No State shall make or enforce any
law which shall abridge the privileges or immunities of
citizens of the United States; nor shall any State deprive
any person of life, liberty, or property, without due process
of law; nor deny any person within its jurisdiction the equal
protection of the laws.
Article XXVII SECTION 1 (legislative intent) plain rule
Equality of rights under law shall not be denied or abridged
by the United States or by any state on account of sex.
IN the Ohio Constitution the court finds:
Article 1
Ã1 All men are, by nature, free and independent, and shall
have certain inalienable rights, among which are those of
enjoying and defending life and liberty, acquiring,
possessing, and protecting property, and seeking and
obtaining happiness and safety.
Ã9 All persons shall be bailable by sufficient surities,
except for capital offences where the proof is evident or the
presumption great. Excessive bail shall not be required; nor
excessive fines imposed; nor cruel and unusual punishments
imposed.
Ã10 ........... In any trial, in any court, the party accused
shall be allowed to appear and defend in person and with
counsel;......
Ã16 All courts shall be open, and every person, for an injury
done him in his land, goods, person, or reputation, shall
have remedy by due course of law, and shall have justice
administered without denial or delay.
Ã20 This enumeration of rights shall not be construed to
impair or deny others retained by the people; and all powers,
not herein delegated, remain with the people.
Article IV.
(B)(1) The court of appeals shall have original jurisdiction
in the following:
(f) In any cause on review as may be necessary to its
complete determination.
(2) Courts of appeals shall have jurisdiction as may be
provided by law to review and affirm, modify, or reverse
judgements or final orders of the courts of record inferior
to the court of appeals within the district and shall have
such appellate jurisdiction as may be provided by law to
review and affirm, modify, or reverse final orders or actions
of administrative officers or agencies.
In ---176 OS 299,199 NE(2d) 586 (1964),Bartlett v. Bartlett
the court found;
"Error in the application of law to the facts in the
rendition of a judgement is judicial error, and is a matter
which must be raised by appeal,... ."
I have done so to your court.
The court finds in Pence v. Darst(1989), 62 Ohio App. 3d 32,
that:
When an appellant elects to wait until the case is
completely over in the trial court before maintaining his
appeal, and the issue that he is seeking to raise on appeal
has not become moot as result of intervening events, it will
not have been impracticable for him to have waited to perfect
his appeal.......
In the much disputed Rahm v. Rahm, 39 App(2d) 74,315 NE(2d)
495(1974), the court found that;
"A party has two opportunities to seek temporary alimony
pending an appeal: first, in the trial court by filing a
motion for temporary alimony pending appeal before a notice
of appeal is filed; and second, by filing a motion for
temporary alimony pending appeal in the court of appeals
after notice of appeal is filed."
It further stated that;
"Temporary alimony pending appeal may be granted to either
party for sustenance and/or expense money during pendency of
the appeal, and it may be granted in divorce action or
alimony action, whether or not the final judgement of the
trial court contains an order for permanent alimony,.... "
In ---53 App(3d) 31,558 NE(2d)63(Franklin 1988),Birath v.
Birath the court found that;
"An alimony award may include an allowance for reasonable
attorney fees."
The plaintiff-appellee stated Lee V. Lee 10 App(3d) 113, 10
OBR 137, 460 NE(2d) 710(Cuyahoga 1983) as precedent for
referral to trial court, but neglected to advise, that the
court more fully stated:
"Under certain circumstances, attorney fees may be awarded
for an appeal from alimony modification or child support
proceeding; however, the more appropriate forum to evaluate
such claims is the court of common pleas, although Civ R 75
grants discretionary power to the court of appeals to award
these fees."
Civ R 75(G) states:
The trial court may, when a motion to modify a custody,
support or alimony order is filed prior to the filing of the
notice of appeal modify the order for the period of the
pendency of the appeal upon such terms as to bond or
otherwise as it considers proper for the security of the
rights of the adverse party and in the best interest of the
children involved. Rule 62(B) does not apply to custody,
alimony or support orders. When appeal is taken by any
party, the court of appeals may grant like orders concerning
custody, support or alimony during pendency of the appeal.
3105.18 (H) states,
In divorce or legal seperation proceedings, the court may
award reasonable attorney's fees at any stage of the
proceedings, including but not limited to appeal, any
proceeding arising from a motion to modify a prior order or
decree, and any proceeding to enforce a prior order or
decree, if it determines that the other party has the ability
to pay the attorney's fees that the court awards. When the
court determines whether to award reasonable attorney's fees
to any party pursuant to this division, it shall determine
whether either party will be prevented from protecting his
interests if it does not award reasonable attorney's fees.
IN SUPPORT OF DISMISSAL OF REQUEST FOR STAY
The plaintiff-appellee having failed to comply with App. R.
7((A)-(B)-(C)) in request of stay, the action should be
denied.
The defendant therefore requests that the plaintiff's
requests be denied or dismissed pursuant to this reply and
the laws and precedent of which the appellate court might
find or know as a applicable under cicumstances of the
requests.
_______________________________
MAURICE E. BRAHIER
C/O NEWMAN, LEARY AND BRICE
214 EAST PARK STREET
CHARDON, OHIO 44024
THIS FIRM IS NOT INVOLVED WITH THIS SECTION OF THE CASE,
THEIR CONNECTION IS THROUGH THE CONTEMPT HEARING ONLY,
THEY HAVE, HOWEVER, STATED THAT MAIL MIGHT BE SENT TO THEIR
ADDRESS SO THAT I MIGHT OBTAIN SUCH.
I, Maurice E. Brahier, have presented this to the Clerk of
The Court of Appeals, also included is an addressed, stamped
envelope for included copy to be sent to attorney of record
for plaintiff after stamping by the clerk.
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