00001 1 V I R G I N I A: 2 IN THE CIRCUIT COURT OF PRINCE WILLIAM COUNTY 3 4 CHERI SMITH, ) 5 Complainant, ) 6 vs. ) In Chancery 7 WESLEY C. SMITH, ) No. 53360 8 Defendant. ) 9 * * * * * 10 11 12 13 The above-entitled matter came on for trial 14 on Monday, May 22, 2006, commencing at 9:59 a.m., at 15 the Prince William County Circuit Court, 9311 Lee 16 Avenue, Manassas, Virginia, before Andrea L. 17 Blakley, Notary Public. 18 19 BEFORE: 20 THE HONORABLE RICHARD B. POTTER 21 22 * * * * * 00002 1 A P P E A R A N C E S 2 3 ON BEHALF OF THE COMPLAINANT: 4 LORETTA VARDY, ESQUIRE 5 Law Office of Loretta Vardy 6 12388 Silent Wolf Drive 7 Manassas, Virginia 20112-7524 8 (703) 791-6078 9 (703) 791-7957 - fax 10 11 ON BEHALF OF THE DEFENDANT: 12 WESLEY SMITH, Pro se 13 5347 Landrum Road 14 Apartment 1 15 Dublin, Virginia 24084 16 Liamsdad@liamsdad.org 17 18 19 20 21 22 (Appearances continued on the next page.) 00003 1 APPEARANCES (continued): 2 3 ON BEHALF OF THE FAIRFAX COUNTY SCHOOL BOARD AND 4 ROGER VANDERHYE: 5 SONA REWARI, ESQUIRE 6 Hunton & Williams 7 1751 Pinnacle Drive 8 Suite 1700 9 McLean, Virginia 22102 10 (703) 714-7512 11 12 ALSO PRESENT: 13 RONALD FAHY, Guardian Ad Litem 14 9236 Mosby Street 15 #A 16 Manassas, Virginia 20110 17 (703) 369-7991 18 19 20 21 22 00004 1 I N D E X 2 3 WITNESS: DIRECT CROSS REDIRECT RECROSS 4 DESIREE ROMEO 170 180 181 5 C. RICHARDS 184 6 LIAM SMITH 190 7 HEIDI THORPE 196 198 206 8 FRANK McNUTLY 208 216 218 9 CHERI SMITH 222 303 10 11 EXHIBITS: PAGE RECEIVED 12 Plaintiff's Nos. 1 through 3 49 13 Plaintiff's No. 4:1 226 14 Plaintiff's No. 4:2 230 15 Plaintiff's No. 4:3 235 16 Plaintiff's No. 4:4 242 17 Plaintiff's No. 5 246 18 Plaintiff's No. 4:5 268 19 Plaintiff's No. 4:7 270 20 Plaintiff's No. 4:9 271 21 22 (Exhibits continued on the next page.) 00005 1 EXHIBITS: PAGE RECEIVED 2 Plaintiff's No. 4:11 273 3 Plaintiff's No. 4:13 274 4 Plaintiff's No. 4:16 276 5 Plaintiff's No. 4:18 279 6 Defendant's Letter E 311 7 Defendant's Letter F 340 8 Defendant's Letter G 360 9 10 11 12 13 14 15 16 17 18 19 20 21 22 00006 1 P R O C E E D I N G S 2 - - - - - 3 (The court reporter was sworn.) 4 THE COURT: Good morning. We are here in 5 Chancery 53360, the case of Smith versus Smith. 6 Cheri Smith is present and Mr. Smith is present. 7 Ms. Smith is represented by Ms. Vardy. And 8 Mr. Smith is appearing without counsel. 9 We're here today for all the issues upon 10 the decree of divorce and equitable distrubution. 11 As you know procedurally what I like to do is go 12 ahead and take some testimony directly from the 13 parties. Then we'll come back and let the parties 14 call their witnesses they like to call. And then 15 we'll take -- and go back and hear from the parties 16 again any questions counsel would like to ask. 17 All right. Mr. Fahy is present as well. 18 Mr. Fahy, your position at this point is... 19 MR. FAHY: Guardian ad litem. 20 THE COURT: You're still serving as 21 guardian for Liam? Okay. When were you appointed; 22 do you remember? 00007 1 MR. FAHY: In the -- without looking at my 2 notes -- 3 THE COURT: It has been a while. 4 MR. FAHY: -- it was when the case reached 5 the Circuit Court. Mr. Smith made a request of 6 appointment guardian and I was appointed then. 7 THE COURT: Okay. We can -- if you'd like 8 to sit through the process, you're certainly free to 9 do that. This is going to be equitable distribution 10 and everything else, so at some point you may just 11 like to make your report and ask any questions as we 12 go through the witnesses. If you feel, you know, 13 that you don't have any other input, you're free to 14 go at any time. 15 MR. FAHY: I did file a report. And my 16 role as guardian has nothing to do with finical 17 matters. 18 THE COURT: Right. That's why I said -- 19 MR. FAHY: I'm prepared to depart if the 20 Court is so inclined. 21 THE COURT: I think we can take that up. 22 Let me ask the questions and go through the basic 00008 1 procedures and then I'll come back and ask you to 2 make your report and then we'll hear from all the 3 parties, okay? 4 Okay. Let me ask the two parties to stand, 5 if you will, and ask the clerk to place you under 6 oath at this time. 7 MS. VARDY: Your Honor, we do have another 8 party here, Ms. Rewari, who is representing the 9 Fairfax school. I don't -- just to make you aware 10 of that that there is someone else here. 11 THE COURT: All right. Well, she's not a 12 party so we'll have to wait and see if she wants to 13 be heard with regards to the offering of any 14 testimony, okay? 15 Parties want to stand please, Ms. Smith. 16 And ask the clerk to place both parties under oath. 17 (The parties were sworn.) 18 THE COURT: All right. You can have a 19 seat. 20 I assume there's going to be a rule on 21 witness. I'm going to ask anyone who is going to 22 testify in this case to please step out of the 00009 1 courtroom at this time. Do not discuss the facts of 2 the case or your testimony after you have testified. 3 Ask counsel to make sure any witnesses you have has 4 stepped out. 5 All right. Let me start with Ms. Smith. 6 Ms. Smith, you are the plaintiff in the case so I'm 7 going to start with you. It's Cheri Smith, and I'm 8 sorry I don't have your middle name. 9 MS. SMITH: I don't have one. 10 THE COURT: You don't have one. Okay. No 11 middle name, middle initial. Your date of birth is 12 what? 13 MS. SMITH: February 4, 1969. 14 THE COURT: February 4, '69. So you're how 15 old now? 16 MS. SMITH: 37. 17 THE COURT: You are 37. 18 MS. SMITH: Uh-huh. 19 THE COURT: And your education level? 20 MS. SMITH: I have a master's degree. 21 THE COURT: And you were at Science 22 Application. Are you still there? 00010 1 MS. SMITH: Yes. 2 THE COURT: You were a project manager. 3 You still project manager? 4 MS. SMITH: Yes. 5 THE COURT: And you had been at that 6 point -- I think that was back in my hearing in 2003 7 I was looking at the notes, but you've been a 8 project manager there for how long at this point? 9 MS. SMITH: Almost five years. 10 THE COURT: Five years. Okay. And do you 11 know what your gross monthly income is from that 12 position? 13 MS. SMITH: I don't know what my gross 14 monthly income is, but my annual income is -- 15 THE COURT: Do you have a monthly income 16 statement, Ms. Vardy, that you're going to offer? 17 MS. VARDY: Yes, Your Honor. 18 THE COURT: All right. Why don't you show 19 that to her and she can just put on the record what 20 her monthly is. 21 I'm sorry, what is your annual now? 22 MS. SMITH: $75,900. 00011 1 THE COURT: $75,9? 2 MS. SMITH: Hundred. 3 THE COURT: Okay. Other than your income 4 from Science Application, do you have any other 5 income? 6 MS. SMITH: No. 7 THE COURT: So by my math that works out to 8 about $6,325 a month. 9 MS. VARDY: Yes, Your Honor. I think 10 that's correct. 11 THE COURT: And have you prepared a monthly 12 income expense statement? Do you want to offer that 13 at this time? Do you have a notebook? 14 MS. VARDY: Yes, Your Honor. 15 THE COURT: Okay. Why don't you offer up 16 the notebook. 17 MR. SMITH: Excuse me, Judge. I don't know 18 if this is the proper time for it, but we have a 19 number of pretrial motions that we need to address. 20 THE COURT: We're going to proceed, 21 Mr. Smith, with the evidence. 22 MR. SMITH: Including -- it appears this 00012 1 Court does not have jurisdiction to hear the case. 2 THE COURT: I'll hear your argument on 3 that, sir. But we're going to take the evidence at 4 this time. You can have a seat. 5 MS. VARDY: Your Honor, may I enter that 6 later? I realized there was no more room in here 7 and I need to pull it -- 8 THE COURT: Do you have an income expense 9 sheet? 10 MS. VARDY: I believe we do, yes, Your 11 Honor. 12 THE COURT: It's not in this book? 13 MR. VARDY: No. 14 THE COURT: Okay. You want to pull that. 15 Let's go ahead and do it now. Also, if you have -- 16 MR. SMITH: Respectfully, Judge, without a 17 ruling on jurisdiction you don't have any authority 18 to proceed. 19 THE COURT: I understand, Mr. Smith, and 20 I'll hear you on that later. 21 MR. SMITH: That -- my understanding is 22 that's incorrect, though. 00013 1 THE COURT: The second issue -- document 2 I'd like to get is your equitable distribution or 3 child support guidelines, if you have that. And any 4 spousal support guidelines if she's seeking spousal 5 support. 6 MS. VARDY: Yes, Your Honor. 7 THE COURT: And then as a fourth matter I'd 8 like a copy of the equitable distribution sheets if 9 you have that. 10 MS. VARDY: Okay. Equitable distribution 11 sheets I can give you right here. 12 MR. SMITH: Judge, I would like to insist 13 that she hand over the ones that she filed with the 14 Court. That I filed a notice of fraud. 15 THE COURT: I'll let you take a look at 16 what she has offered. 17 MR. SMITH: She has since amended them. 18 But per your order they weren't filed on the 19 deadline. They were not to be allowed at trial. 20 THE COURT: Okay. I want the ones she 21 intends to offer today, sir. We'll let you look at 22 them as well. 00014 1 MS. VARDY: Your Honor, Mr. Smith has a 2 copy of them already and -- 3 MR. SMITH: Given that I got it 4 yesterday -- 5 THE COURT: All right. Let me interrupt, 6 Mr. Smith. Don't keep talking throughout this 7 process, okay? I'm going to direct some questions 8 to her initially and get some documentation. And 9 then I'll come back to you and ask you some 10 questions and get some documentation, okay? 11 MR. SMITH: Well, forgive me, Judge, but I 12 do not have an attorney. For one, I read every time 13 you do something I think is wrong I'm required to 14 stand up immediately and say something. So please 15 forgive me, that's what I will do during the trial. 16 THE COURT: I understand you're not an 17 attorney, Mr. Smith. But I do have to hold you to 18 having the same knowledge as an attorney since 19 you're choosing to represent yourself. 20 MR. SMITH: And my understanding is every 21 time -- 22 THE COURT: I have the ability also to 00015 1 treat you as I treat an attorney because you are 2 counsel. 3 MR. SMITH: -- you make a wrong ruling I 4 must object. 5 THE COURT: Now, let me go back. 6 Ms. Vardy, do you have your -- first of all, let's 7 start with the monthly income expense statement. 8 MS. VARDY: No. I haven't gotten that one 9 yet. The equitable distribution -- 10 THE COURT: Go ahead and take that out. 11 Pass them up. I want to put them in order. So I 12 want your monthly income expense statement. 13 And I'll ask you to do the same, Mr. Smith. 14 If you want to get yours out. Pull your monthly 15 income expense statement first. Any spousal support 16 calculation sheets second. Child support 17 calculation sheet third. Equitable distribution 18 sheet is fourth. 19 MR. SMITH: I would like an answer for the 20 record, are you proceeding without jurisdiction? 21 THE COURT: I'm proceeding in accordance 22 with the procedure I established when I first came 00016 1 in, Mr. Smith. 2 MR. SMITH: My question is, with 3 jurisdiction? 4 THE COURT: I'll hear your argument and any 5 motions -- 6 MR. SMITH: If you don't have jurisdiction 7 you have no more right to keep going than anybody 8 else does. 9 THE COURT: Mr. Smith, don't talk over me. 10 When I speak you need to be quiet. Just have a 11 seat. 12 While she's looking for the exhibits, 13 Ms. Smith, let me continue through my questions with 14 you in terms of your background. 15 Let's see. You said you were born 16 February 4th, 1967, was it? 17 MS. SMITH: 1969. 18 THE COURT: '69. So you are 37 years old. 19 You have a master's degree and you're still employed 20 at Science Application International, I think was 21 the name, correct? 22 MS. SMITH: (Nodding head.) 00017 1 THE COURT: And you've been a project 2 manager there for about five years, then, you said? 3 MS. SMITH: Yes. 4 THE COURT: And I asked and I have 5 forgotten your response. Do you have any other 6 source of income? 7 MS. SMITH: No, sir. 8 THE COURT: All right. Tell me about your 9 physical health. Are you in good physical health? 10 MS. SMITH: I am. 11 THE COURT: Are you in good mental health? 12 MS. SMITH: I am. 13 THE COURT: Are you on any medications at 14 this time? 15 MS. SMITH: Ortho Tri-Cyclen. 16 THE COURT: And what is that for? 17 MS. SMITH: That is a birth-control 18 medication. 19 THE COURT: Okay. And do you have 20 insurance through any insurance agency for your 21 health care now? 22 MS. SMITH: I do. It's through Aetna. 00018 1 THE COURT: Through Aetna. And does that 2 cover you and the child? 3 MS. SMITH: It covers me and Liam and 4 Mr. Smith. 5 THE COURT: So it covers all three of you. 6 So it's like a family plan or something? 7 MS. SMITH: Yes. That's per order of the 8 court. 9 THE COURT: And you have that through your 10 employer? 11 MS. SMITH: That's correct. 12 THE COURT: Okay. And do you know what you 13 pay monthly towards that family plan for Liam? 14 MS. SMITH: It's -- for Liam it's roughly 15 $35 biweekly. So it's slightly more than $70 a 16 month. 17 THE COURT: $35 biweekly, divide that by 2, 18 multiply that by 4-1/3, I get $75. $75.25, 19 something like that. 20 MS. SMITH: That could correct. 21 THE COURT: Does that have a dental plan; 22 do you know? 00019 1 MS. SMITH: It does. 2 THE COURT: Okay. All right. And what is 3 your current address? 4 MS. SMITH: 1533 -- 5 THE COURT: Wait a minute because that's 6 different from what I had. 1533. 7 MS. SMITH: 1533 Lincoln Circle. 8 THE COURT: Leland? 9 MS. SMITH: Lincoln. 10 THE COURT: Lincoln. 11 MS. SMITH: Apartment number 104. 12 THE COURT: Apartment 104, and where is 13 that? 14 MS. SMITH: That's McLean. 15 THE COURT: McLean, Virginia. And when did 16 you move into the Lincoln Circle Address? 17 MS. SMITH: In July of 2004. 18 THE COURT: Okay. I had you at Manassas 19 Mill Road at one time; is that where you were before 20 you moved in here? 21 MS. SMITH: Yes. 22 THE COURT: And can you describe that for 00020 1 me. Is that a one-bedroom, a two-bedroom? 2 MS. SMITH: It's a two-bedroom. 3 THE COURT: Okay. And who resides with you 4 there? 5 MS. SMITH: Liam. 6 THE COURT: And he has his own bedroom? 7 MS. SMITH: He does. 8 THE COURT: Anyone else reside with you 9 there? 10 MS. SMITH: No. 11 THE COURT: What was your date of marriage? 12 MS. SMITH: November 23rd, 1988. 13 THE COURT: And where were you married? 14 MS. SMITH: In South Jordan, Utah. 15 THE COURT: And was this your first 16 marriage? 17 MS. SMITH: Yes. 18 THE COURT: Do you have any children other 19 than Liam? 20 MS. SMITH: No. 21 THE COURT: Okay. All right. Liam was 22 born July 22, 1997? 00021 1 MS. SMITH: That's correct. 2 THE COURT: How old is Liam now? 3 MS. SMITH: He's eight. 4 THE COURT: He's eight. He was in Round 5 Elementary. What school and what grade is he in 6 now? 7 MS. SMITH: He goes to Spring Hill 8 Elementary. And he's in second grade. 9 THE COURT: All right. And if you 10 described him as a student, would you say he's 11 average, above average or below average? 12 MS. SMITH: Below average as a student. 13 THE COURT: Does he have Down Syndrome? 14 MS. SMITH: He does. He's in their special 15 ed and has an IEP. 16 THE COURT: He has an IEP? 17 MS. SMITH: Uh-huh. 18 THE COURT: When was your last IEP; do you 19 know? 20 MS. SMITH: Our last IEP meeting was the 21 beginning of May. But it was to make some 22 modifications to an IEP that was done in January of 00022 1 this year. 2 THE COURT: Okay. Spring Hill Elementary. 3 Is that in Fairfax County? 4 MS. SMITH: It is. 5 THE COURT: Okay. And that is a special 6 education program that he's in? 7 MS. SMITH: He spends part of the time in a 8 special education program and part of the time in a 9 regular classroom. 10 THE COURT: So they do kind of mainstream 11 him in some areas? 12 MS. SMITH: Uh-huh. 13 THE COURT: What's his usual schedule 14 Monday through Friday? 15 MS. SMITH: He typically goes to school 16 at -- he gets on the bus at 8:00. School starts at 17 8:35. They have homeroom activities he participates 18 until about 10:15. And then he'll go to the 19 resource room. 20 Some days of the week he works with a 21 speech therapist in the morning. Some days he works 22 with an occupational therapist. He will spend a 00023 1 couple of hours in the resource room doing special 2 ed instruction in reading and math. 3 THE COURT: Okay. 4 MS. SMITH: And then he'll return for lunch 5 and recess to the regular classroom. He goes to 6 them -- to what they call -- he goes with them to 7 what they call special things like library, art, 8 music, and he will spend usually about an hour to an 9 hour and a half in the resource room in the 10 afternoon sometimes. 11 Sometimes he's in the regular classroom for 12 science and social studies. Sometimes he actually 13 spends one-on-one time with the teacher for that -- 14 for that part of the day. It depends on what 15 they're doing. 16 THE COURT: Okay. And what time does he 17 usually -- does he get on a bus? Come home by bus? 18 MS. SMITH: School ends at 3:10. He gets 19 on the bus and travels to the after-school care, 20 Fairfax County School Aged Child Care. 21 THE COURT: Does that have to be a special 22 program for him, too? 00024 1 MS. SMITH: No. 2 THE COURT: No. Okay. And you pick him up 3 then from the after-school program? What time do 4 you get there? 5 MS. SMITH: Usually about 5:30. 6 THE COURT: And is that five days a week? 7 MS. SMITH: Yes. They have a short day on 8 Mondays so he'll be at the after-school program from 9 about 12:30 until I pick him up. 10 THE COURT: Okay. But again, you're 11 picking him up about 5:30, something like that? 12 MS. SMITH: Yes. 13 THE COURT: Okay. And is your office in 14 McLean? 15 MS. SMITH: It is. 16 THE COURT: Where is Spring Hill 17 Elementary? 18 MS. SMITH: It's also in McLean. It's 19 about half a mile from our apartment. 20 THE COURT: Oh, okay. From your apartment. 21 All right. All right. 22 And you said you had no other children 00025 1 other than Liam, correct? 2 MS. SMITH: No. 3 THE COURT: When did you and your husband 4 separate as man and wife? 5 MS. SMITH: On or around September 17th, 6 2002. 7 THE COURT: And did you move out or did he 8 move out? 9 MS. SMITH: I moved out. 10 THE COURT: Did you ever move back into the 11 home to reside with him again? 12 MR. SMITH: Judge, could you tell her about 13 perjury. She did not move out September 2002. She 14 moved out in June 2003. 15 THE COURT: Okay. Mr. Smith. I'll give 16 you a chance to respond to my questions. Let me ask 17 her to respond at this time. 18 MR. SMITH: It has been my experience the 19 Court does not give me a chance to respond. 20 THE COURT: Okay. 21 MS. SMITH: I left -- 22 THE COURT: Ms. Smith, you left in 00026 1 September 17th, 2002. Did you come back into the 2 home? 3 MS. SMITH: I did. There's a period of 4 time where Mr. Smith and I alternated nights in the 5 home with Liam. 6 THE COURT: When did you do that? 7 MS. SMITH: That was through September and 8 October. 9 THE COURT: Still in 2002? 10 MS. SMITH: This was still in 2002. 11 THE COURT: Okay. 12 MS. SMITH: Mr. Smith was out of the home 13 during November and December of 2002. He returned 14 and we both resided in the home, but separately. 15 And that was also according -- 16 THE COURT: When did he return; do you 17 know? In December 2002 sometime? 18 MS. SMITH: It was -- it was toward the end 19 of December. It was while I was on vacation and I'm 20 not sure exactly when I got back. I returned, I 21 think, January 2nd of 2003 and he was there. 22 THE COURT: And did you at that time move 00027 1 in the home in separate bedrooms? 2 MS. SMITH: Yes. 3 THE COURT: Okay. And that was January 2, 4 2003 sometime? 5 MS. SMITH: Yes. 6 THE COURT: And then how long did you stay 7 in the home, then? 8 MS. SMITH: I moved out to the apartment in 9 Manassas, Manassas Mill Road. I moved to that 10 location in June of 2003. 11 THE COURT: Okay. And you remain separate 12 and apart without cohabitation and without 13 interruption since June 2003? 14 MS. SMITH: Correct. 15 THE COURT: Okay. And that was the -- the 16 one I had you down before the 10238 Manassas Mill 17 Road. 18 MS. SMITH: Yes. 19 THE COURT: And did you take Liam with you 20 when you moved out? 21 MS. SMITH: I did. 22 THE COURT: Okay. You took him with you in 00028 1 June of '03? 2 MS. SMITH: Uh-huh. 3 THE COURT: So he has resided with you 4 since June of '03? 5 MS. SMITH: Correct. 6 THE COURT: Is Liam on any medications at 7 this time? 8 MS. SMITH: He's on Merawat, which is a 9 maintenance laxative. 10 THE COURT: Okay. Anything else? 11 MS. SMITH: In the spring he's on 12 Rhinocort, which is a nasal spray for allergies. 13 THE COURT: Okay. Anything else he's on? 14 Does he see a physician on a regular basis? 15 MS. SMITH: He does. He sees a physician 16 just for typical well childhood visits. He 17 alternates those with visits to a geneticist who -- 18 she follows his progress and makes recommendations 19 for tests in some in terms of things that tend to be 20 problems with children with Down Syndrome. 21 THE COURT: What's the prognosis for Liam? 22 What's the future for him at this point in terms of 00029 1 his education? 2 MS. SMITH: Liam is -- he's classified as 3 developmentally delayed, I believe. 4 THE COURT: I'm sorry. Again. 5 MS. SMITH: He's classified as 6 developmentally delayed. His label actually may be 7 mental retardation. I don't remember. He is 8 technically considered mentally retarded. He 9 functions very well compared to his peers. Children 10 with Down Syndrome have a wide range of ability. 11 THE COURT: Right. That's why I asked. 12 MS. SMITH: Compared to his peers he 13 functions very well. His language skills tend to be 14 very strong for a child with Down Syndrome. 15 He has some -- he has difficult and 16 struggles with -- he struggles with just learning in 17 general. He does have low muscle tone and so that 18 makes his physical development slower. He can't do 19 the same things other kids do like playing soccer. 20 But he -- he manages to function in most 21 environments with supports. And those tend to be 22 things like increased structure, simplified 00030 1 directions. 2 THE COURT: That's true of his social 3 skills and that sort of thing as well? 4 MS. SMITH: He tends to -- he tends -- his 5 social skills are actually pretty strong except for 6 the language difficulty. He does have articulation 7 problems and language delays. And he -- and he does 8 have some skill deficits in terms of conflict 9 resolution, but usually responds well to being 10 taught those skills. But you just have to be very 11 directed and specific effort. 12 THE COURT: Okay. Now, in terms of 13 visitation with his father. He has had a history of 14 visitation with his father that has kind of been off 15 and on. You separated in '03. Did he have a 16 regular visitation schedule after your separation in 17 June of '03? 18 MS. SMITH: He did. He had a regular 19 visitation schedule with his father from June of '03 20 until December -- the end of December of '04 when 21 he -- 22 THE COURT: When you say "regular," what 00031 1 were his visitations? 2 MS. SMITH: It started out Tuesday and 3 Thursday evenings and then every other weekend. 4 THE COURT: The evenings he picked him 5 up -- pick Liam up, bring him back the same evening? 6 Or would he take him them the next morning to school 7 or what? How did that work? 8 MS. SMITH: I believe that we would pick 9 him up and bring him back to school the next day. 10 THE COURT: Okay. That was Tuesdays and 11 Thursdays? 12 MS. SMITH: That was Tuesdays and 13 Thursdays. After -- 14 MR. SMITH: And additionally, I had him for 15 daycare on top of the visitation. 16 THE COURT: Let her speak. Let her speak, 17 Mr. Smith. I'll get back to you. 18 Go ahead. 19 MS. SMITH: After the -- after Mr. Smith 20 moved from our home that we had resided in in 21 Manassas to the apartment in Woodbridge, that was 22 changed to just one day a week. So it was Tuesday 00032 1 nights. And then we maintained every other weekend 2 and holidays. 3 THE COURT: Every other weekend? 4 MS. SMITH: Yeah. Every other weekend, 5 yes. 6 THE COURT: Every other weekend, okay. And 7 when did that end? 8 MS. SMITH: When his father moved -- it was 9 December of 2004 when his father moved to Michigan. 10 THE COURT: Okay. And why would his 11 father's move to Michigan impact on the visitation? 12 You're talking about he moved to Michigan? 13 MS. SMITH: Yes. 14 THE COURT: Oh, I'm sorry. Okay. I 15 thought you meant his father. Okay. He moved to 16 Michigan, the defendant moved to Michigan and that 17 pretty much changed obviously there wasn't any 18 weekend visitation. Was there ever any court order 19 or agreed visitation from Michigan or anything like 20 that? 21 MS. SMITH: Not after that. There was -- a 22 temporary restriction on visitation was put in place 00033 1 until Mr. Smith met certain criteria. One of those 2 was to get a report from the psychologist that Liam 3 was seeing at the time. I believe another criteria 4 he had to meet was to submit an acceptable plan for 5 visitation. 6 THE COURT: Did he ever do that? 7 MS. SMITH: No. 8 THE COURT: Okay. Was there ever an 9 established visitation? 10 MS. SMITH: No. 11 THE COURT: Did he return from Michigan at 12 some point, as far as you know? 13 MS. SMITH: He did. I believe he moved 14 back to -- or he moved to Virginia where now he 15 resides in Dublin, Virginia in the spring of 2005. 16 THE COURT: Spring of 2005? 17 MS. SMITH: Yeah. 18 THE COURT: Okay. And was -- has there 19 been any visitation established -- I started asking 20 you these questions because I know there have been 21 plenty of pendente lite orders, but I have not got 22 them all in front of me. 00034 1 What happened to visitation in the spring 2 of 2005? Had any other orders been entered? 3 MS. SMITH: No. No additional orders have 4 been entered. 5 THE COURT: Does he have any visitation 6 scheduled at this time? 7 MS. SMITH: No. 8 THE COURT: He has no scheduled 9 visitations? 10 MS. SMITH: No. 11 THE COURT: Okay. In terms of your 12 position on custody in this case, what -- and I'll 13 take you through each of the issues in just a 14 minute, but what is your -- since we're on the issue 15 of visitation, what's your position on custody? 16 First of all, the issue of custody itself. 17 MS. SMITH: I believe that I should 18 maintain sole legal and physical custody of Liam. 19 THE COURT: All right. You understand how 20 joint legal custody works? 21 MS. SMITH: Yes. 22 THE COURT: Would you be opposed to joint 00035 1 legal custody? 2 MS. SMITH: Yes. For the reason that -- 3 because of Liam's disability. It's important that 4 he have someone who can work as an advocate for him. 5 And work with the schools to make sure he's 6 educated. 7 THE COURT: How far is Dublin from where 8 Liam lives now? 9 MS. SMITH: I believe it's about four 10 hours. It's in southwest Virginia. 11 THE COURT: Okay. And we'll get back to 12 the other reasons. I just wondered what your 13 position is. So your position on custody is you 14 would like to have sole custody of Liam at this 15 time? 16 MS. SMITH: Yes. 17 THE COURT: And your position on 18 visitation? 19 MS. SMITH: Liam misses his dad. I would 20 like to see him have some visitation. I have some 21 concerns about protecting Liam from conflict 22 involved with this divorce. I have some concerns 00036 1 about the ability to make it stable and predictable 2 for him. That's extremely important for him. 3 THE COURT: Do you have any problem with 4 the ability of Mr. Smith to take care of Liam 5 overnight, weekends? I mean, you had that 6 visitation at one period of time. 7 MS. SMITH: No. 8 THE COURT: So you don't have any problem 9 with that? 10 MS. SMITH: No. 11 THE COURT: In issues of -- at some point I 12 can assure you the issues of divorce are going to go 13 away. It takes time to do that, but once the 14 equitable issues are resolved a lot of the other 15 issues are resolved and it makes -- it should make 16 it a lot easier between both of you. 17 But you understand there's always that need 18 when you have a child to communicate with the father 19 and maintain a relationship. What restriction, if 20 any, do you think would be appropriate to place on 21 the visitation? 22 MS. SMITH: I would minimize the contact 00037 1 that Wes and I have together in Liam's presence. I 2 would make some very strict limitations on 3 information about where Liam is. 4 THE COURT: You want to know where he is 5 and if he has moved or goes for a vacation somewhere 6 you want to know how to get in touch with him and 7 that sort of thing? 8 MS. SMITH: Yes. And in my experience if 9 there's any -- if there's any doubt about how the 10 visitation schedule has been drawn up, that can be a 11 source of conflict. 12 THE COURT: Okay. Well, I'm sure Ms. Vardy 13 can assure you that we do a very detailed visitation 14 schedule when we do a visitation schedule here. But 15 it has to fit the needs of the child, the best 16 interest of the child and the needs of the parties 17 as well. 18 And when you're four hours apart it's not 19 like it's an easy thing to do, so it does take a 20 commitment on behalf of both parties to make sure 21 that it works. 22 Let me go back to the other issues I need 00038 1 to ask you. You and your husband do not have a 2 property settlement agreement, correct? 3 MS. SMITH: That is correct. 4 THE COURT: Okay. Yourself, personally, do 5 you own any real estate? 6 MS. SMITH: No. 7 THE COURT: Did you and your husband own a 8 marital residence at one time? 9 MS. SMITH: We did. 10 THE COURT: And what was the address there; 11 do you remember? 12 MS. SMITH: It was 11411 Huntsman Drive. 13 That was a Manassas address. 14 THE COURT: And that was a single-family 15 home? 16 MS. SMITH: That's correct. 17 THE COURT: How many bedrooms was that? 18 MS. SMITH: It had four bedrooms. 19 THE COURT: Okay. Do you remember when you 20 purchased that home? 21 MS. SMITH: It was in January of 1997. 22 THE COURT: And then do you remember what 00039 1 you paid for that home when you bought it at all? 2 MS. SMITH: I believe it was $207,000. 3 THE COURT: Okay. And you sold it when? 4 MS. SMITH: In December of 1994. Excuse 5 me. December of 1993. 6 THE COURT: Sold it? 7 MS. SMITH: Yes. 8 THE COURT: You bought it in '97 and sold 9 in '93? 10 MS. SMITH: Oh, I'm sorry. 2003. 11 THE COURT: 2003. Okay. And did you net 12 proceeds from that sale, you and your husband? 13 MS. SMITH: Yes, we did. 14 THE COURT: Where they equal proceeds that 15 you netted? He net the same amount? 16 MS. SMITH: I'm sorry? 17 THE COURT: Did you each make the same 18 amount of money out of the sale? 19 MS. SMITH: The proceeds from the sale have 20 not been distributed. 21 THE COURT: All right. Who holds the 22 proceeds from the sale? 00040 1 MS. SMITH: They are held by Mr. Smith's 2 former attorney, John Whitbeck. $50,000 of those 3 have -- of those funds have been released to 4 Mr. Smith's mother to satisfy a debt that he owed to 5 her. 6 THE COURT: Okay. And what's the balance 7 left in the escrow? 8 MS. SMITH: It would be approximately 136 9 less the amounts that have been paid to Mr. Fahy, 10 which I believe is in the range of $2,700. 11 THE COURT: Okay. So there were some funds 12 deducted to pay the guardian ad litem; is that what 13 happened? 14 MS. SMITH: That's correct. 15 THE COURT: Okay. Ms. Vardy, do you know 16 the figure in escrow at this point? 17 MS. VARDY: Yes, Your Honor. It is 18 $130,000 -- $130,053. 19 THE COURT: Okay. Thank you. 20 At the time -- at some point in time, I 21 take it that prior to the sale you also distributed 22 your personal property, furnishings in the 00041 1 household. When did you do that? 2 MS. SMITH: Some of it was done when I 3 moved out in June. I took a few things, and 4 although I didn't take any furniture -- 5 THE COURT: June of... 6 MS. SMITH: 2003. 7 THE COURT: Goes back to '03. 8 MS. SMITH: Yeah. Mr. Smith moved out at 9 the time we sold the house. He took some of it with 10 him then. There was a piano that I took with me and 11 I don't remember when I moved that out of the house. 12 THE COURT: Okay. 13 MS. SMITH: Much of the furniture that was 14 in the home stayed there and conveyed to the next -- 15 THE COURT: The buyer? 16 MS. SMITH: The buyer. 17 THE COURT: Okay. And in terms of personal 18 property automobiles, do you own an automobile now? 19 MS. SMITH: I do. 20 THE COURT: What year and make is your 21 automobile? 22 MS. SMITH: It's a 2002 Mazda 626. 00042 1 THE COURT: 2002? 2 MS. SMITH: Mazda 626. 3 THE COURT: And is that vehicle paid for? 4 MS. SMITH: No, it's not. There's a lien 5 on it. 6 THE COURT: Okay. And you cover the 7 insurance, make the payments on that vehicle, bear 8 the cost of that vehicle? 9 MS. SMITH: Yes. 10 THE COURT: Title in your name alone? 11 MS. SMITH: Yes, it is. 12 THE COURT: Any other vehicles in your 13 name? 14 MS. SMITH: No. 15 THE COURT: Do you own any boats, campers 16 or trailers? 17 MS. SMITH: No. 18 THE COURT: All right. I'll take a look at 19 your equitable distribution sheet. We'll go through 20 your assets in just a minute. 21 So the first issue is grounds of divorce. 22 Counsel, maybe you can answer this. She's going to 00043 1 proceed on grounds of divorce on what basis? 2 MS. VARDY: Your Honor, we've chosen to go 3 forward on one year separation. 4 THE COURT: All right. And do you have -- 5 are you going to present ore tenus? I don't -- I 6 didn't see anything about a commission. Did you 7 have a commissioner's hearing? 8 MS. VARDY: No, we did not. 9 THE COURT: Are you going to present some 10 corroborating evidence today on the divorce? 11 MS. VARDY: Yes, Your Honor. 12 THE COURT: All right. And spousal 13 support. Does she seek any spousal support at this 14 time? 15 MS. VARDY: No, Your Honor. 16 THE COURT: All right. Let me go back to 17 my original request. First, you have your monthly 18 income expense statement. 19 MS. VARDY: Your Honor, if I could ask my 20 client, I have found the first page of it and she 21 may have a copy of the remaining pages. I have it, 22 I just -- everything else I've lined up and this 00044 1 is -- 2 THE COURT: Second thing is the 3 calculation -- well, she's not seeking spousal 4 support, so we've addressed that. 5 Second thing is the calculation of child 6 support, those guidelines. Do you have that? 7 MS. VARDY: Your Honor, my client just 8 found out last week that she was getting a raise, so 9 I have to recalculate the child support. And I 10 had -- 11 THE COURT: All right. Do you have the 12 initial one you want to offer? 13 MS. VARDY: I have the initial one, Your 14 Honor. 15 THE COURT: Let me take a look at that. 16 We'll mark that as Plaintiff's 1. 17 MS. VARDY: Actually, Your Honor, you have 18 the initial one as well -- 19 THE COURT: Child support guideline 20 calculation as 2. 21 MS. VARDY: I'm sorry, Your Honor. There's 22 a copy in the file with -- 00045 1 THE COURT: The file is eight folders long. 2 So if you want to wade through it I'll let you do 3 that. 4 MS. VARDY: Okay. I will hunt through here 5 again. Since I had just updated. 6 MR. SMITH: There's a copy on my website if 7 you want to take a recess -- 8 THE COURT: That's okay, sir. I just want 9 to get what she wants to offer today. 10 MS. VARDY: Your Honor, if you want to 11 start with the equitable distribution, I can get my 12 client to go through -- 13 THE COURT: Okay. From what you're saying 14 we're going to have to make a recalculation on the 15 child support? 16 MS. VARDY: Yes, we are. 17 THE COURT: Let's go through some of that. 18 The basics of it. First of all, her monthly income 19 she has testified is $6,325. Would there be any 20 change to that for the purpose of the calculation 21 sheet? 22 MS. VARDY: No. That's the current income. 00046 1 THE COURT: That's the current income. 2 MS. VARDY: Prior to that I did it on 3 $6,033. 4 THE COURT: Okay. We can make the 5 calculation here. The other two ingredients as you 6 know them. The one is the insurance cost, and she 7 has testified it's about $75.25 a month to cover 8 Liam on her policy. And the third one, which I 9 didn't ask her about, which I'll do now, is whether 10 you have any other monthly child-care cost for Liam 11 at this time. 12 MS. SMITH: I do. They tend to be -- it's 13 $256 a month for the nine months he's in school. 14 THE COURT: $256 for nine months? 15 MS. SMITH: Uh-huh. And roughly $600 a 16 month for the three months he's not in school. 17 THE COURT: And three months in the summer? 18 MS. SMITH: Uh-huh. 19 THE COURT: Okay. $256 times 9 is $2,304. 20 And you said $600 during the summer for those three 21 months. So $1,800. So you have $2,304 and $1,800 22 and you get a total cost of $4,104. Divide that by 00047 1 12 and you get an additional $342 a month. Does 2 that sound about right? 3 MS. SMITH: That sounds about right. 4 THE COURT: Ms. Vardy, you may be able to 5 answer the question. Are there any other 6 calculations that you would put in for the 7 child-support guideline worksheet other than 8 insurance and child-care cost? 9 MS. VARDY: No, Your Honor. 10 THE COURT: Okay. All right. We can make 11 that calculation as to the statutory amount. 12 MS. VARDY: Oh, I'm sorry. Excuse me, Your 13 Honor. There was -- there is therapy cost as well. 14 That is speech therapy and occupational therapy. We 15 were going to ask the Court to consider that as a 16 deviation. 17 THE COURT: And is that not covered by 18 insurance? 19 MS. VARDY: No. 20 THE COURT: Okay. Generally that's based 21 on the percentage of the parties' income to cover 22 that cost like that not covered by insurance. So it 00048 1 will probably be covered in child-support guideline 2 in the health-care cost portion of that, okay? 3 MS. VARDY: That's what I thought. 4 THE COURT: All right. We've done child 5 visitation. On this equitable distribution issues 6 of real estate, you have no issues of real estate 7 then to address at this point other than 8 distribution of the escrow that has been set aside. 9 Second one is personal property in the 10 terms of household furnishings. Are you seeking any 11 household furnishings from Mr. Smith at this time? 12 MS. SMITH: No. 13 THE COURT: Third one is your personal 14 property automobiles. Do you seek to retain your 15 interest in your own automobile? 16 MS. SMITH: Yes. 17 THE COURT: Do you seek any interest in any 18 automobiles he has possession of? 19 MS. SMITH: No. 20 THE COURT: And -- all right. The Court 21 when oftentimes [sic] where there is an issue of 22 retirement accounts. Do you have a retirement 00049 1 account in your current employment? 2 MS. SMITH: I do. 3 THE COURT: And do you know the present 4 value of that retirement account? Is that a 401(k) 5 or -- 6 MS. SMITH: Part of it is an employee stock 7 retirement planning account. And some of it is a 8 401(k). 9 THE COURT: Okay. And do you have a 10 breakdown on your sheet? So far we've got an income 11 statement and you want to offer your equitable 12 distribution worksheet? 13 MS. VARDY: Yes, Your Honor. 14 THE COURT: What is this worksheet? That's 15 the information worksheet. Okay. We'll mark that. 16 Income statement as 1. Equitable 17 distribution worksheet as 2. Custody information 18 sheet is 3. 19 (Plaintiff's Exhibit Numbers 1 through 3 20 were received into evidence.) 21 MS. SMITH: The total balance right now is 22 $9,865. 00050 1 THE COURT: Okay. You have a proposal with 2 regards to distribution of her retirement? 3 MS. VARDY: Yes, Your Honor. All of this 4 was put into the retirement account post-separation. 5 There was a balance of zero as to the date of 6 separation. 7 THE COURT: Okay. 8 MR. SMITH: We don't know yet what the date 9 of separation is. 10 THE COURT: You didn't start yet at that 11 employment until after you separated? 12 MS. SMITH: I started at that employment -- 13 the first distributions that were made to that 14 account were -- were made after my first year of 15 employment. So I started as an employee as SEIC in 16 September. 17 THE COURT: Okay. So it's not a question 18 of when you started, it's a question of when they 19 started to contribute to your retirement account? 20 MS. SMITH: And those distributions weren't 21 made until April of 2003. 22 THE COURT: April of 200? 00051 1 MS. SMITH: 3. 2 THE COURT: Okay. 3 MR. SMITH: Judge, we really need a ruling 4 on the date of separation. 5 THE COURT: Once all the evidence is in we 6 can have a ruling. We've got to get the evidence in 7 first, okay? 8 MR. SMITH: Well, then can we ask them to 9 restrict their definition of terms by calendar date 10 rather than saying -- 11 THE COURT: I'll come -- 12 MR. SMITH: -- after separation? 13 THE COURT: I'll come back to you. 14 All right. We've addressed the retirement. 15 Do you seek any interest in any retirement account 16 Mr. Smith has? 17 MS. SMITH: I don't know that he has -- I 18 don't believe he has any, but no. 19 THE COURT: Okay. Life insurance policy. 20 Do you have a life insurance policy on your own 21 life? 22 MS. SMITH: I do. 00052 1 THE COURT: And who is the beneficiary of 2 that policy? 3 MS. SMITH: Currently Mr. Smith. I was 4 instructed to change it to Liam, but I was also told 5 to wait. So I have the forms to do that. 6 THE COURT: Okay. Generally what the Court 7 does, so long Liam is a minor, is require that 8 either party's life insurance policy name Liam as 9 the beneficiary. Obviously an adult would have to 10 be named -- can be named -- any adult you would like 11 to name should be named to serve as trustee, if you 12 will, of that -- the proceeds of that policy because 13 Liam is a minor. 14 But the intent of the Court is to protect 15 Liam until he is over age, until the obligation of 16 support is terminated, so that if anything happens 17 to either party then there would be some funds 18 available to support him. 19 So would you have any objection to doing 20 that? You do not have to name Mr. Smith, but you do 21 have to name an adult with Liam as the ultimate 22 beneficiary of your life insurance policy. 00053 1 MS. SMITH: I've made arrangements to do 2 that. 3 THE COURT: Okay. You own any stocks or 4 bonds in any corporations? 5 MS. SMITH: I do have stock in SEIC just 6 because that [sic] in the two accounts. 7 THE COURT: Okay. I guess the question is, 8 do you have any joint stocks and bonds with 9 Mr. Smith at this time? 10 MS. SMITH: There is some stock in a 11 company he worked for, Cardiopulmonary Corporation, 12 in 1996, but I haven't been able to determine the 13 value of that stock. But I believe it's pretty 14 close to -- 15 THE COURT: Do you know how many shares 16 there are at all? 17 MS. SMITH: I think there's 2,000 shares. 18 THE COURT: Okay. And are they titled in 19 joint names or are they in his name alone? 20 MS. SMITH: I think they're in Wesley 21 Smith's name alone. 22 THE COURT: Okay. And what would be your 00054 1 request with regard to stock, if any? 2 MS. SMITH: I'd like to keep those. 3 THE COURT: Do you? 4 MS. SMITH: Uh-huh. 5 THE COURT: Okay. Do you own any 6 individual accounts, IRAs? 7 MS. SMITH: I'm sorry? 8 THE COURT: Do you own any IRAs, individual 9 retirement accounts? 10 MS. SMITH: No, I do not. 11 THE COURT: Do you own any CDs, 12 certificates of deposit? 13 MS. SMITH: I do not. 14 THE COURT: At the current time have you 15 been taking the tax deduction, using the deduction 16 for Liam on your tax records? 17 MS. SMITH: I have. 18 THE COURT: And what -- what type of 19 federal and state taxes do you file? Do you file 20 joint or separate and married? 21 MS. SMITH: Separate. 22 THE COURT: Separate and married. And how 00055 1 long have you been doing that? 2 MS. SMITH: Since 2000 -- the tax return 3 for 2003. Actually, I've been filing head of 4 household. 5 THE COURT: Head of household, okay. 6 MS. SMITH: And I think I need to go back 7 and correct something you asked me earlier. 8 THE COURT: All right. 9 MS. SMITH: I believe I have shares 10 independent of my retirement account. 11 THE COURT: Okay. That's shown on the 12 equitable distribution sheet? 13 MS. SMITH: I believe it is. 14 THE COURT: Okay. Let me take you through 15 that. You've got the marital home assets. You 16 want -- perhaps we should talk about that. What is 17 your position with regard to escrow? 18 Ms. Vardy, how do you feel that should be 19 divided? 20 MS. VARDY: Your Honor, at this point we 21 are asking that it be turned over to Ms. Smith in 22 full. 00056 1 THE COURT: All right. And why to her in 2 full? 3 MS. VARDY: Okay. The reason for that, 4 Your Honor, is that we have -- Ms. Smith would, 5 under a 50/50 split, would be entitled to half of 6 the balance from the sale of the home. In addition 7 to that she has expended her monies on paying the 8 mortgage during the time of the separation when she 9 was out of the home -- 10 MR. SMITH: Excuse me, Judge. I have to 11 object to Loretta testifying without being put under 12 oath. 13 THE COURT: She's making an argument, 14 Mr. Smith. She's answering my question. 15 MR. SMITH: I've already filed a motion 16 asking for sanctions for her testifying, filing 17 falsely on this precise topic -- 18 THE COURT: She's providing information to 19 the Court, Mr. Smith. 20 MR. SMITH: She's providing misinformation 21 to the Court. 22 THE COURT: I'll let you -- I'll be 00057 1 heard -- I'll let you be heard on that, but you 2 can't interrupt her at this point. 3 MR. SMITH: My understanding is I must 4 interrupt. 5 THE COURT: No, you can't interrupt. 6 MR. SMITH: So I'm sorry about that, but 7 that's what I read I'm required to do. 8 THE COURT: All right, sir. I understand 9 your position. I also understand you're not a 10 lawyer, but you don't have to interrupt. You can 11 make an appropriate objection at times, but you're 12 not allowed to interrupt. If you do continue to 13 interrupt we'll remove you from the court. 14 MR. SMITH: Well, yes, that's what they 15 said, to object. Is there a different form that you 16 would like me to use for doing that? 17 THE COURT: You have to note an objection 18 if you have an objection to something. 19 MR. SMITH: I need to use the term 20 "objection"? 21 THE COURT: What's that? 22 MR. SMITH: I need to use the term 00058 1 "objection"? 2 THE COURT: I can't give you legal advice, 3 Mr. Smith. 4 MR. SMITH: Well, I will attempt to try 5 that. 6 THE COURT: All right. Ms. Vardy, I forgot 7 where we were. We were talking about distribution 8 of the -- 9 MS. VARDY: Yes, Your Honor. 10 THE COURT: -- assets from the sale. And 11 you think she should receive 100 percent of that, 12 which -- 13 MS. VARDY: Yes, Your Honor. 14 THE COURT: -- the net worth is worth 15 $130,053 at this point. 16 MS. VARDY: Yes, Your Honor. The reason 17 for that is the -- as I said, we're asking for one 18 half of the net proceeds from the sale of the 19 marital home. So that would be $91,246.50. We're 20 asking for one half of the mortgage payments that 21 is -- 22 THE COURT: Wait a minute. Let me back you 00059 1 up. 2 MS. VARDY: Would it help if I gave you the 3 sheet, Your Honor? 4 THE COURT: Yes. You got a sheet? 5 MS. VARDY: Yes. 6 THE COURT: We'll mark that as Exhibit 5 or 7 6 -- 8 MS. VARDY: Actually, I think it went in on 9 the back of the -- 10 MR. SMITH: And again, I must object to 11 using her amended one rather than the original one. 12 The court order said if you didn't file on time you 13 wouldn't be allowed to present that type of 14 evidence. 15 THE COURT: All right, sir. I'll hear your 16 argument on that. Let me get back to you. 17 MS. VARDY: Your Honor, I believe all of 18 those figures with the exception of two that I will 19 address are the original figures. 20 THE COURT: Okay. 21 MS. VARDY: We have -- if you see the 22 months that the mortgage -- 00060 1 THE COURT: This worksheet is attached and 2 you're right. You can have this one back. It's 3 attached to your ED sheet. So it's already a part 4 of Exhibit 2. All right. 5 MS. VARDY: Okay. 6 THE COURT: All right. Well, that's 7 helpful. That pretty much sets forth your 8 explanation of why you want that divided, then? 9 MS. VARDY: Yes, Your Honor. The -- we 10 listed out the amount of utilities that Ms. Smith 11 paid after the separation. The reimbursement of -- 12 MR. SMITH: Objection, Your Honor. We 13 don't know what the separation date is yet. 14 THE COURT: All right, sir. Well, her 15 testimony to this Court has been that the two of you 16 separated on September 17th, 2002. That's her 17 testimony. 18 MR. SMITH: She has also filed -- 19 THE COURT: She has gone through the 20 history of that separation. So I'm satisfied and 21 I'll overrule your objection, Mr. Smith, okay? 22 The sheet lists a number of items that you 00061 1 feel should be addressed as far as what she has paid 2 and this sort of thing? 3 MS. VARDY: Yes, Your Honor. And that's -- 4 that's part of what that whole book is detailing the 5 credit card payments that she -- 6 THE COURT: We'll come back to that. We'll 7 let her testify to those. 8 MS. VARDY: Okay. In addition to that, 9 Your Honor, there is a $17,000 arrearage on the 10 child support. 11 THE COURT: Does it also reflect the 12 payment regarding the guardian ad litem for 13 additional fees? 14 MS. VARDY: Well, we have asked that at the 15 bottom, yes. It's not in the -- actually, we 16 realize we're asking for more than is in escrow and 17 we understand that the Court is going to determine 18 what portions of it are distributed in what way. 19 THE COURT: I didn't see a deduction for 20 his initial -- 21 MS. VARDY: It is under number -- well, 22 actually, what we have asked was that Mr. Smith be 00062 1 responsible for paying Mr. Fahy's fees, but should 2 the Court decide otherwise -- 3 THE COURT: Okay. All right. We'll come 4 back to that. Actually, I say that's attached, but 5 it's coming apart. We'll keep it as part of the ED 6 sheet. 7 Okay. I believe -- are there any other 8 issues of equitable distribution you're going to ask 9 the Court to address? And we'll get to attorney's 10 fees last and court cost. But any additional 11 equitable distribution issues. 12 MS. SMITH: Yes. There were two stock 13 accounts that Mr. Smith had when -- at the time of 14 separation. 15 THE COURT: Okay. Is that the CPC stock? 16 MS. SMITH: No. One was the Daytech 17 Trading account and another was an Ameritrade 18 Trading account. 19 THE COURT: Okay. And you've got "unknown" 20 there. You think he sold that in September of '02? 21 MS. SMITH: I'm sorry? 22 THE COURT: You think he sold that in 00063 1 September of '02? 2 MS. SMITH: I believe they have been 3 liquidated. I don't know -- 4 MR. SMITH: I must object, Your Honor. 5 They haven't presented any evidence there were stock 6 accounts. 7 THE COURT: Okay. It's her testimony. 8 I'll overrule the objection. 9 MR. SMITH: Well, if they put on evidence 10 they might find out there was only one. Just the 11 company names switched. 12 THE COURT: I'll overrule the objections. 13 Other than the Cardiopulmonary stocks, the Daytech 14 stock and the Ameritrade stock, CPC stock you've got 15 listed here, are there any other stock? 16 MS. SMITH: No. 17 THE COURT: Okay. Any other issues that 18 you want me to address as part of equitable 19 distribution? 20 MS. SMITH: I think that's it. 21 THE COURT: All right. Let me ask you 22 about attorney's fees. Is she seeking attorney's 00064 1 fees, Ms. Vardy? 2 MS. VARDY: Yes, Your Honor. 3 THE COURT: How much in attorney's fees 4 does she seek? 5 MS. VARDY: Your Honor, may I give you an 6 affidavit tomorrow? But it is approximately 7 $40,000. 8 THE COURT: Okay. All right. Okay. Thank 9 you. Let me go to Mr. Smith. 10 Mr. Smith, what is your middle name, sir? 11 MR. SMITH: Clay, C-L-A-Y. 12 THE COURT: A-Y. And your date of birth? 13 MR. SMITH: 5/26/65. 14 THE COURT: So you're how old? 15 MR. SMITH: 40. 16 THE COURT: And your education level? 17 MR. SMITH: I have a B.S. in computer 18 science. 19 THE COURT: And your employer? 20 MR. SMITH: I don't know its official name, 21 but it's the Quality Inn in Christiansburg. 22 THE COURT: And how long have you been 00065 1 employed at the Quality Inn in Christiansburg? 2 MR. SMITH: Since about mid-January. 3 THE COURT: January of '06? 4 MR. SMITH: That's correct. 5 THE COURT: And what is your title there? 6 MR. SMITH: I'm not entirely sure. I do 7 the night front desk and -- 8 THE COURT: Night clerk? 9 MR. SMITH: Yeah. 10 THE COURT: And how much is your gross 11 income from that employment monthly? 12 MR. SMITH: Roughly $400, I believe. 13 THE COURT: That's not a full-time job, 14 then, I take it? 15 MR. SMITH: That is correct. 16 THE COURT: How many hours do you work in a 17 week? 18 MR. SMITH: 16, give or take. 19 THE COURT: And how much do you get paid 20 per hour? 21 MR. SMITH: $7, I believe. 22 THE COURT: Okay. 16 hours at $7 means 00066 1 you're making $112 per week at 4-1/3 means you make 2 about $481.60; does that sound about right? 3 MR. SMITH: Something like that. But I had 4 filed with the Court what it was. I just took the 5 checks and did an average for them. So the accurate 6 number would be in there. 7 THE COURT: So you're not sure? Do you 8 have a monthly income expense statement for 9 yourself? 10 MR. SMITH: I have filed one with the Court 11 as directed. I do not know that I brought an extra 12 copy with me because I didn't think that was 13 necessary. 14 THE COURT: All right. Well, maybe at a 15 break you can go through the court files if you like 16 and see if you can find it. 17 Are you in good health, sir? 18 MR. SMITH: Yes, sir. My only health 19 problems are gastro reflux and ADD. 20 THE COURT: Are you in good mental health? 21 MR. SMITH: Depends on your view of ADD. 22 THE COURT: Do you take medications for 00067 1 your ADD? 2 MR. SMITH: Not at the moment. I have 3 previously had some prescribed, but -- 4 THE COURT: When were you first diagnosed 5 with ADD? 6 MR. SMITH: In, I think, 2003. 7 THE COURT: Okay. And you're not on 8 medications now? 9 MR. SMITH: No. Can't afford it. 10 THE COURT: And then you have some gastro 11 problems at all -- you told me as well? 12 MR. SMITH: Yeah, it's -- 13 THE COURT: Are you on any medication for 14 that? 15 MR. SMITH: I take over-the-counter 16 medication for it. 17 THE COURT: Okay. And do you have health 18 insurance for yourself? 19 MR. SMITH: No, I don't. 20 THE COURT: And you don't have any for Liam 21 as well, then? 22 MR. SMITH: No. 00068 1 THE COURT: Okay. And what is your current 2 address? 3 MR. SMITH: 5347 Landrum Road, apartment 1, 4 Dublin, 24084. 5 THE COURT: Okay. And can you describe 6 that for me. Is that a one-bedroom apartment, 7 two-bedroom? Where do you live? 8 MR. SMITH: I have a one-bedroom apartment 9 in the basement of my brother's house. 10 THE COURT: Oh, it's your brother's home? 11 MR. SMITH: Yeah. He has a four-bedroom, 12 two-and-a-half bath house. And -- 13 THE COURT: Is your brother married? 14 MR. SMITH: Yes. He's married and has two 15 kids. 16 THE COURT: What's his name? 17 MR. SMITH: Thaniel. 18 THE COURT: Daniel? 19 MR. SMITH: Thaniel, T-H-A-N-I-E-L. I also 20 have a brother named -- my parents -- 21 THE COURT: I just want to work with the 22 residence. Thaniel Smith? 00069 1 MR. SMITH: That's correct. 2 THE COURT: And his wife's name? 3 MR. SMITH: Katherine. 4 THE COURT: Katherine. And do they have 5 any children? 6 MR. SMITH: Yes, they have children. 7 THE COURT: How many do they have? 8 MR. SMITH: They have a girl that is nine 9 and a boy that's five. 10 THE COURT: Okay. And they live there in 11 the home, do they? 12 MR. SMITH: That's correct. 13 THE COURT: So they have four people in the 14 home? 15 MR. SMITH: Yes. 16 THE COURT: And you live down in the 17 basement? You have a room in the basement, you say? 18 MR. SMITH: There's an apartment down 19 there. I've got my own kitchen and bathroom and 20 shower. 21 THE COURT: Okay. And you pay rent to your 22 brother or do they just let you live there? 00070 1 MR. SMITH: I pay a limited amount of rent. 2 THE COURT: Okay. 3 MR. SMITH: But I do some chores for him. 4 They have me cook dinner for the family on 5 Wednesdays. I mow the grass. 6 THE COURT: Okay. 7 MR. SMITH: Sometimes I babysit the kids 8 for them. 9 THE COURT: All right. And when did you 10 move into that apartment? 11 MR. SMITH: Around March 2005. 12 THE COURT: March of '05. Okay. 13 And currently do you own any real estate? 14 MR. SMITH: No. 15 THE COURT: You and your wife were married 16 November 23, 1988, in Utah, correct. 17 MR. SMITH: That's correct. 18 THE COURT: And was this your first 19 marriage? 20 MR. SMITH: Yes. 21 THE COURT: And do you have any other 22 children other than Liam? 00071 1 MR. SMITH: No. 2 THE COURT: And Liam was born July 22nd, 3 1997? 4 MR. SMITH: Yes. 5 THE COURT: Is eight years old? 6 MR. SMITH: Yes. 7 THE COURT: And he currently resides with 8 his mother and attends Spring Hill Elementary, 9 correct? 10 MR. SMITH: Yes. Although at this point 11 since the Court has refused to answer -- force her 12 to answer questions, we're not entirely sure that 13 he's my child. I'd like to think he is, but since 14 she has been sleeping around and won't proved 15 details -- 16 MS. VARDY: Objection, Your Honor. 17 THE COURT: Okay. But you've never sought 18 determination of the father -- who the natural 19 father is to this child? 20 MR. SMITH: I don't understand. 21 THE COURT: All right. Are you seeking 22 child support for a child -- or visitation of a 00072 1 child that's not yours? 2 MR. SMITH: I don't know whether or not 3 he's mine. I consider him mine, but now that I know 4 she has been sleeping around and refuses to answer 5 questions such as when she started that conduct, you 6 never now. 7 THE COURT: You've been court ordered to 8 pay child support for Liam, correct? 9 MR. SMITH: No. I do not believe the court 10 order is valid. I do not believe this court has 11 jurisdiction. In fact, maybe this would be a good 12 time to make a proffer for the Appeals Court. 13 THE COURT: I think it's a good time to 14 tell me why you think this Court doesn't have 15 jurisdiction. 16 MR. SMITH: Well, I filed a motion. Got a 17 lot of reasons, actually, but we will start with 18 number 58. Do you have a copy of that? 19 THE COURT: No, sir. But you can go ahead 20 and tell me why you feel the Court does not have 21 jurisdiction. I'll hear your motion. 22 MR. SMITH: Well, jurisdiction in a divorce 00073 1 is statuary. This Court in divorce cases does not 2 act as general jurisdiction. And to start a divorce 3 case you have to serve a bill of compliant. I was 4 never at any point served with a bill of complaint. 5 As such, the Court does not have jurisdiction. 6 Further, as what they stated today, they 7 are only going to proceed on one-year separation 8 grounds, which is good since I was an excellent 9 father and husband. And when she filed for divorce 10 we were not separated one year. And per Virginia 11 Court of Appeal ruling you have to have -- the 12 grounds for divorce has to exist when you file for 13 divorce. 14 I was never served. This Court has no 15 jurisdiction on that basis. Also on the basis of 16 one-year separation there is no jurisdiction. She 17 did not move out until June of '03, which is the 18 earliest you can reasonably consider a date of 19 separation. 20 We can make a very good case for later than 21 that as we continued to share expenses and other 22 items. But she filed before -- she filed just, 00074 1 like, two weeks after she moved out. Clearly short 2 of the year. 3 THE COURT: Okay. Any other reason why you 4 feel the Court does not have jurisdiction? 5 MR. SMITH: I believe the Court has lost 6 jurisdiction through his misconduct. I filed a 7 motion to have you recused and I think we need to go 8 over that as well as the motion for change of venue. 9 THE COURT: Well, let's take it one -- 10 let's stick with one issue at a time. Any other 11 reason you feel the Court doesn't have jurisdiction? 12 MR. SMITH: Well, the Court has refused to 13 follow the law. It has refused to comply with the 14 constitution. As we can see, the jury is noticeably 15 lacking. I have not waived my right to a jury 16 trial. As you might guess with me I've been quite 17 blunt that I demand a jury trial. 18 THE COURT: I think the Court has already 19 ruled on your earlier motion -- 20 MR. SMITH: And the Court has no legal 21 right to make that legal ruling. When a Court 22 intentionally makes a ruling such as that that it 00075 1 knows is wrong, that's in violation of the 2 constitution, you lose jurisdiction. 3 THE COURT: Okay. 4 MR. SMITH: Assuming you ever did have 5 jurisdiction, which you didn't, you wouldn't have 6 the right to proceed. Also, the Court -- 7 THE COURT: Any other reason you feel the 8 Court lacks jurisdiction? 9 MR. SMITH: Also, the Court has proceeded 10 with demonstrative bias as such in the first hearing 11 when it was about the house, there was no notice 12 that custody was going to be discussed. 13 And you just simply on the basis of gender 14 changed visitation from where I had my son five days 15 a week for daycare plus three days a week for 16 visitation, plus an additional statement saying that 17 I was to have access to the child at any other time 18 and him to me. 19 And you simply decide, Well, here's a man. 20 You don't deserve any more than Tuesday nights. And 21 you threatened me with no visitation whatsoever for 22 doing what the Court had previously ordered me to 00076 1 do. 2 THE COURT: Okay. 3 MR. SMITH: And you have a county-wide 4 reputation for having no respect whatsoever for the 5 law in custody cases. Total bias. And per the 6 rules that I read the judiciary are supposed to 7 follow, you've got no business hearing custody cases 8 at all. 9 THE COURT: Thank you, Mr. Smith. 10 Ms. Vardy, do you want to respond to the 11 objection on jurisdiction? 12 MS. VARDY: Yes, Your Honor. At the time, 13 Your Honor, the bill of compliant was served on 14 Mr. Whitbeck, who we believed represented Mr. Smith 15 and indeed represented Mr. Smith, and then filed a 16 cross-bill. So if nothing else, the fact that he 17 has filed a cross-bill should grant this Court 18 jurisdiction. 19 As to the one-year separation, when we 20 initially filed, we filed on the false grounds of 21 cruelty and constructive abandonment. We later 22 amended it as any party may do after one year as we 00077 1 calculate the date of separation. And if necessary, 2 I will make a verbal motion today to go forward on 3 the grounds of a one-year separation. 4 THE COURT: It's my understanding that's 5 what you did earlier. 6 MS. VARDY: Yes. 7 THE COURT: All right. Given the totality 8 of the circumstance in this Court's review of the 9 file and pleadings in this case, the facts and law 10 in Virginia, I'm going to deny the motion with 11 regards to lack of jurisdiction. 12 MR. SMITH: I'm going to have to object. 13 And I will make a proffer -- 14 THE COURT: I note your exception. I'll 15 note your exception, Mr. Smith. 16 MR. SMITH: -- for the Appeals Court. And 17 I will make a proffer at this time. 18 THE COURT: No, sir. There will be no 19 proffer. 20 MR. SMITH: There will be a proffer. 21 THE COURT: I'll note your exception. 22 Mr. Smith, I'm going to -- 00078 1 MR. SMITH: The argument is clearly an 2 error. 3 THE COURT: I'm going to continue with the 4 questions that are background questions that we need 5 to have answered in accordance of the Court's rule. 6 MR. SMITH: As the statute clearly states, 7 the defendant must be served. And the law actually 8 clearly states the exception -- if he actually gets 9 service she argues she sent it to the attorney -- 10 THE COURT: Mr. Smith, I've ruled on your 11 motion. 12 MR. SMITH: -- it does say except in cus -- 13 divorce and custody cases. The intent of the 14 legislator is quite clear that service on an 15 attorney is not sufficient to start a divorce case. 16 It is quite clear on that. 17 THE COURT: I understand, Mr. Smith. I 18 have ruled on -- I've ruled on your motion. 19 MR. SMITH: It is also quite clear in a 20 divorce case that if -- 21 THE COURT: Mr. Smith, I'm going to cut you 22 off. If you can't stop talking when I talk I'm 00079 1 going to make you leave -- 2 MR. SMITH: No. I'm allowed to make a 3 proffer. You can be quiet. You can leave the room 4 while I make a proffer. 5 THE COURT: I'm not going to let you make a 6 proffer. 7 MR. SMITH: You don't have that option, 8 Judge. We know you're running a Kangaroo Court 9 here, but you really ought to put it on a pretense 10 at least to follow on the law. 11 THE COURT: All right, Mr. Smith. Let me 12 go forward with these other issues that -- 13 MR. SMITH: You -- 14 THE COURT: -- they're proceeding on the 15 grounds of one-year separation. Do you have any 16 objection to them obtaining a divorce on the grounds 17 of one-year separation? 18 MR. SMITH: Yes. They can't. It hasn't 19 been -- when they filed it wasn't a one-year 20 separation. 21 THE COURT: Okay, sir. 22 MR. SMITH: They filed for divorce -- 00080 1 THE COURT: Are you here today having filed 2 a cross-bill? Are you here today proceeding on 3 grounds of divorce yourself? 4 MR. SMITH: I don't believe there is a 5 case. There is no jurisdiction in this case. 6 THE COURT: So do you wish to withdraw any 7 cross-bill you may have in the case for divorce? 8 MR. SMITH: No. If you are going to 9 continue with a Kangaroo Court I will present 10 evidence of adultery and desertion. 11 THE COURT: Okay. 12 MR. SMITH: As well as physical and verbal 13 abuse. 14 THE COURT: All right. All right. And the 15 issue of spousal support is the second issue. Do 16 you seek any spousal support from Ms. Smith? 17 MR. SMITH: We all know you wouldn't give 18 it to me. 19 THE COURT: I'm going to ask the question 20 again, Mr. Smith. Do you seek any spousal support 21 from Ms. Smith? 22 MR. SMITH: What I seek is a jury trial in 00081 1 a court that has jurisdiction. This clearly is not 2 the case. And a ruling that you make doesn't make 3 it so. Jurisdiction is only granted by the -- 4 THE COURT: Third issue is child custody. 5 MR. SMITH: -- record of the case -- 6 THE COURT: Do you seek child custody? 7 MR. SMITH: You need to show in the record 8 of the case where I was served. Not an attorney. 9 THE COURT: Mr. Smith, do you seek child 10 custody of Liam? 11 MR. SMITH: Yes, I do. 12 THE COURT: What type of custody do you 13 seek? 14 MR. SMITH: But I seek it in a court that 15 has jurisdiction to hear it. This one does not. 16 THE COURT: Mr. Smith, I'm not going to 17 continue to argue. The motion you've made, I've 18 ruled on it. I have ruled on that motion. We need 19 to proceed -- 20 MR. SMITH: But you haven't ruled honestly 21 on it. 22 THE COURT: Mr. Smith, your opinion does 00082 1 not impact on this Court with regard on whether 2 we're going to proceed or not. We're going to 3 proceed. You're entitled to your opinion. I 4 respect that. But we need to proceed with this 5 case. 6 MR. SMITH: Not the way you're doing it 7 without a jury telling me I can't make proffers. 8 That's clearly illegal. 9 And we know you're upset about my website 10 because I submitted evidence to the Court that you 11 or your staff has been browsing my website to see 12 what I've said about you. That is clearly improper 13 conduct for a judge. And you should recuse yourself 14 and change the venue to a different court. 15 THE COURT: I can assure you, Mr. Smith, 16 I've never pulled up any website of yours. 17 MR. SMITH: You may not have, but your 18 staff has. I submitted proof. 19 THE COURT: Do you seek child custody, 20 Mr. Smith? And if so, what kind of custody do you 21 seek? 22 MR. SMITH: I believe in equal custody. 00083 1 However, due to the way judges like yourself screw 2 over fathers in court combined with the inability of 3 my wife to cooperate, I think sole legal and 4 physical custody for me is appropriate with 5 considerable amount of visitation for her. 6 My son should have access to both parents. 7 THE COURT: And what type -- if you have 8 custody, what type of visitation would you give her, 9 Mr. Smith? 10 MR. SMITH: I would like the visitation to 11 be based around when my son would like to see her. 12 THE COURT: All right. And if she has 13 custody, what visitation would you like from her for 14 Liam? 15 MR. SMITH: I would like significant 16 visitation. But the problem is your Court doesn't 17 enforce the visitation orders when they make it. So 18 unless I get custody, the court order is really 19 nothing more than toilet paper. It's pointless. 20 You don't enforce it. Otherwise, we wouldn't have 21 eight volumes of -- 22 THE COURT: It think it's important, 00084 1 Mr. Smith, you not interject your opinion of this 2 Court in these proceedings. 3 MR. SMITH: It's not an opinion. It's a 4 fact. 5 THE COURT: You must -- you should answer 6 the questions and present your evidence. But you 7 can't continue to interject your personal views in 8 this court, all right? 9 MR. SMITH: You, sir, are continuing to 10 interject your personal views in the court. 11 THE COURT: All right, sir. In terms -- 12 MR. SMITH: Yours don't belong here. Mine 13 do. 14 THE COURT: In terms of equitable 15 distribution, do you own any real estate at this 16 time? 17 MR. SMITH: No. We can skip all the 18 questions. I have about $200 in checking accounts. 19 I have no significant assets. 20 THE COURT: Okay. In terms of your 21 automobile, do you own an automobile? 22 MR. SMITH: It's jointly titled. 00085 1 THE COURT: What make and model is that 2 automobile that you drive? 3 MR. SMITH: It is a '93 Saturn SL2. 4 THE COURT: And you say it's jointly 5 titled. Whose name is it titled? 6 MR. SMITH: In my wife's and mine. 7 THE COURT: And when did you purchase that 8 car? 9 MR. SMITH: In '92. 10 THE COURT: Okay. And it's still titled in 11 both your names? 12 MR. SMITH: Yes. 13 THE COURT: All right. Do you own any 14 other automobiles? 15 MR. SMITH: No. 16 THE COURT: All right. In terms of the 17 household furnishings that were in the house, do you 18 seek any furnishings from Ms. Smith at this time? 19 MR. SMITH: Only the piano. 20 THE COURT: And do you know anything about 21 the piano? The make or model or anything like that? 22 MR. SMITH: I believe it's a Yamaha. It's 00086 1 an upright. I believe it's worth about 2 four-and-a-half-thousand dollars. It was in very 3 good condition. 4 THE COURT: And why do you feel you should 5 have possession of that item of personal property? 6 MR. SMITH: Well, it would be very handy to 7 have because the one above my head in my brother's 8 house keeps going out of tune. 9 THE COURT: Okay. You play the piano 10 yourself? 11 MR. SMITH: No, I don't. But my brother's 12 children take piano lessons and they play quite 13 frequently everyday. 14 THE COURT: You and your wife purchased 15 that piano? 16 MR. SMITH: Yes, we did. 17 THE COURT: While you were married you 18 purchased the piano? 19 MR. SMITH: Yes. 20 THE COURT: And do you have a retirement 21 account yourself? 22 MR. SMITH: No. 00087 1 THE COURT: Do you seek any interest in 2 your wife's retirement account? 3 MR. SMITH: For what she has earned in 4 there so far, yes. 5 THE COURT: Okay. 6 MR. SMITH: Not in terms of the future. 7 THE COURT: Do you have any life insurance 8 on your own life? 9 MR. SMITH: No. 10 THE COURT: Do you own any stock and bonds 11 in any corporation? 12 MR. SMITH: Just the previously mentioned 13 stock in Cardiopulmonary Corporation. 14 THE COURT: Okay. And do you know when you 15 acquired that? She has indicated September 1996; 16 does that sound right? 17 MR. SMITH: That's possible. 18 THE COURT: Do you know how many shares you 19 have? 20 MR. SMITH: No. 21 THE COURT: Do you know what the value of 22 those shares are? 00088 1 MR. SMITH: As far as I am aware, they're 2 not worth anything. Given my finical situation, if 3 they were sellable, I would have sold them. 4 THE COURT: All right. Do you still hold 5 those shares of stock yourself? 6 MR. SMITH: I do not have them. I believe 7 my wife has the actual stock certificates. 8 THE COURT: Okay. And do you know anything 9 about the Daytech stock account? 10 MR. SMITH: Yes, I do. 11 THE COURT: And do you know -- she has 12 indicated it was jointly held stock. Was it a 13 jointly held stock? 14 MR. SMITH: Yes. 15 THE COURT: She has indicated she believes 16 that you liquidated those. You sold those stocks? 17 MR. SMITH: Yes, I did. When she stopped 18 sharing income I had to sell the stock. 19 THE COURT: When did you do that; do you 20 know? 21 MR. SMITH: Roughly September 2002. 22 THE COURT: Okay. And do you know what you 00089 1 sold them for? 2 MR. SMITH: Let's see. 3 THE COURT: She has got an estimate for 4 $7,992. I guess an estimate -- 5 MR. SMITH: I put $8,000. 6 THE COURT: Was it $8,000 even? 7 MR. SMITH: Approximately. I think it was 8 just a little bit less than $8,000. 9 THE COURT: Well, the $7,992, is that an 10 accurate figure, you think? 11 MR. SMITH: Close enough. 12 THE COURT: Okay. And the Ameritrade 13 account? 14 MR. SMITH: That is the same account. One 15 of those companies bought the other one. 16 THE COURT: Same account as what? 17 MR. SMITH: Daytech and Ameritrade are the 18 same stock account, one company just bought the 19 other one. 20 THE COURT: So you don't have any separate 21 shares of those? 22 MR. SMITH: No. It was just a name change. 00090 1 THE COURT: She indicated they were sold 2 September 20, '02. You think that's -- that's the 3 same shares of stock right there? 4 MR. SMITH: Yeah. We only ever had one 5 trading account. 6 THE COURT: She has it valued at $24,252 on 7 her sheet. Do you know what -- 8 MR. SMITH: She's dreaming. 9 THE COURT: You don't know -- you never 10 received any $24,000 for the sale of the stock? 11 MR. SMITH: No. That's irrelevant anyway. 12 We were still living together. 13 THE COURT: Okay. At the time of sale in 14 '02 you were still residing as man and wife? Still 15 living -- 16 MR. SMITH: Yes. Still living in the house 17 for another nine months. 18 THE COURT: All right. Item 7 is the tax 19 purposes. You've been filing federal and state 20 income taxes, I assume, since your separation? 21 MR. SMITH: Not last year. 22 THE COURT: No? 00091 1 MR. SMITH: No need. No income. 2 THE COURT: All right. We looked at the 3 stock accounts. Do you own any other stock, I 4 suppose I should ask. Do you own any other shares 5 of stock -- 6 MR. SMITH: No. 7 THE COURT: -- other than what we listed? 8 You own any individual requirement 9 accounts? 10 MR. SMITH: No. 11 THE COURT: IRAs? Any CDs? 12 MR. SMITH: No. I've already said I don't 13 have any other assets. 14 THE COURT: Okay, sir. All right. Let me 15 take you through the issues as well. The grounds of 16 divorce we've addressed. Spousal support, you 17 say -- are you seeking any spousal support? 18 MR. SMITH: I would like it. That would be 19 the fair thing to do. I put her through school to 20 get her MBA. 21 THE COURT: How much a month do you think 22 would be appropriate payment for spousal support? 00092 1 MR. SMITH: I would like a percentage. 2 THE COURT: Percentage of? 3 MR. SMITH: Percentage of her income. 4 THE COURT: Okay. You don't know how much, 5 though? What percent? 6 MR. SMITH: I would say 5 percent of 7 anything she makes over $100,000. I had to commute 8 three hours a day, work a crappy job and then come 9 home and take care of an infant -- 10 THE COURT: Let's talk about that. Let's 11 talk about your work record. Your work history, if 12 you will. You've been working at Quality Inn since 13 January of '06, I think you said? 14 MR. SMITH: Yes. 15 THE COURT: When were you last employed 16 prior to that? Prior to the Quality Inn? 17 MR. SMITH: Oh, a year or two earlier. 18 THE COURT: Any employment in 2005? 19 MR. SMITH: No. 20 THE COURT: Any employment in 2004? 21 MR. SMITH: Yeah. For about six months. 22 THE COURT: And were did you work then? 00093 1 MR. SMITH: Who did I work for or where did 2 I work? 3 THE COURT: Either one or both. 4 MR. SMITH: I worked at Fort Belvoir. 5 THE COURT: And what did -- who did you 6 work for there? 7 MR. SMITH: CSC. 8 THE COURT: CSP? 9 MR. SMITH: CSC. 10 THE COURT: E? 11 MR. SMITH: C. Computer Science 12 Corporation. 13 THE COURT: Okay. And how long did you 14 work for them? When did you start and when did you 15 finish? 16 MR. SMITH: I worked there about a year. 17 THE COURT: Okay. All of 2004, you think? 18 MR. SMITH: No. Some of it was in 2003. 19 THE COURT: Okay. And what were you doing 20 for them? 21 MR. SMITH: I did programming for websites. 22 THE COURT: Okay. Do you know what you 00094 1 were making in that employment on a monthly basis or 2 annual basis? 3 MR. SMITH: No. 4 THE COURT: Hourly basis? 5 MR. SMITH: No. 6 THE COURT: Was that a full-time job for 7 you? 8 MR. SMITH: Yes. 9 THE COURT: So that was the last full-time 10 job you had before your Quality Inn job? 11 MR. SMITH: That's correct. 12 THE COURT: Okay. You're not -- you don't 13 know how much you were making on a monthly basis 14 during that job? 15 MR. SMITH: Not exactly, no. 16 THE COURT: Okay. Have any idea? Any 17 ballpark idea? 18 MR. SMITH: It would have been around $85 19 to $90,000 a year. 20 THE COURT: $85 to $90,000 a year. And how 21 about in -- does that include 2003? You started in 22 2003 at CSC, didn't you? 00095 1 MR. SMITH: Yes. 2 THE COURT: Okay. 3 MR. SMITH: Toward the end of 2003. 4 THE COURT: When did you leave there in 5 2004? 6 MR. SMITH: Well, I had to take a leave of 7 absence due to the court case and I could not get 8 the plaintiff to stop dragging me into court. 9 THE COURT: When was that? When did you 10 leave there? Month? You know the month you left? 11 MR. SMITH: I am not sure exactly. 12 THE COURT: Okay. You took a leave of 13 absence, and did you go back to the job? 14 MR. SMITH: No. I could not because the 15 plaintiff wouldn't allow that. 16 THE COURT: Okay. And you're not sure it 17 happened sometime in 2004. You worked about a year 18 for them altogether, though; is that what you're 19 saying? 20 MR. SMITH: Yes. 21 THE COURT: Okay. All right. And prior to 22 2003 where were you employed? 00096 1 MR. SMITH: I worked at the Department of 2 Labor. 3 THE COURT: In 2003? 4 MR. SMITH: Not 2003, I don't think. 5 THE COURT: 2002? 6 MR. SMITH: I don't know. I worked there 7 about three years. 8 THE COURT: About three years. What were 9 you doing at the Department of Labor? 10 MR. SMITH: Same thing. Web programing. 11 THE COURT: Why did you leave the 12 Department of Labor? 13 MR. SMITH: Well, that was our plan, was 14 that we were going to put her through to get her MBA 15 and I would be able to quit and stay home and take 16 care of Liam. 17 THE COURT: Okay. Let's back up. When did 18 she go for her MBA; do you know? 19 MR. SMITH: As soon as she found out she 20 was pregnant she started applying for MBA schools 21 and started with that a couple of weeks after he was 22 born. 00097 1 THE COURT: So Liam was born in July of 2 '97. So prior to that she put in for her master's? 3 MR. SMITH: Yes. She did not want to stay 4 home and be a mother. 5 THE COURT: Did she quit working? 6 MR. SMITH: She wasn't working. 7 THE COURT: She wasn't working. Prior to 8 Liam being born she was not employed? 9 MR. SMITH: Not from, say, November through 10 when he was born, she was not working. 11 THE COURT: Where was she working before 12 that? 13 MR. SMITH: She worked part time at some, 14 like, BARE, I think, up in Connecticut. 15 THE COURT: Okay. What was she doing for 16 them; do you know? 17 MR. SMITH: Not entirely sure. 18 THE COURT: Okay. Then Liam's born in '97? 19 MR. SMITH: Yes. 20 THE COURT: Okay. And did she go back to 21 work after his birth or get her master's? What did 22 she do? 00098 1 MR. SMITH: As soon as she found out she 2 was pregnant she filed for MBA and she started her 3 MBA program just a couple weeks after he was born. 4 So that instant we put him in daycare. 5 THE COURT: And did she -- 6 MR. SMITH: She went for, like, a year -- 7 THE COURT: Was she going to school full 8 time? 9 MR. SMITH: She was going to school more 10 than full time. She even had to fill out a request 11 to be able to take more than 18 credit hours. 12 THE COURT: Okay. But she wasn't working a 13 job at all? 14 MR. SMITH: She also did some work for the 15 school. 16 THE COURT: Part time? 17 MR. SMITH: Yes. 18 THE COURT: What was she doing? Substitute 19 teaching or -- 20 MR. SMITH: It was tied up in some kind of 21 grants or something. I'm not sure. 22 THE COURT: Okay. All right. And you 00099 1 worked during that period of time? 2 MR. SMITH: Yes. I worked and took care of 3 Liam in the evening. 4 THE COURT: Where were you working then? 5 The Department of Labor or somewhere else? 6 MR. SMITH: I worked at the Department of 7 Labor for part of that and also part of it at Apple. 8 THE COURT: Okay. All right. So she went 9 to school and at some point she started a job. She 10 started working? 11 MR. SMITH: Yes. 12 THE COURT: After she got her degree? 13 MR. SMITH: Uh-huh. 14 THE COURT: Do you know when that was? 15 MR. SMITH: I believe she started working 16 in January of 2002. I'm not positive, but -- 17 THE COURT: Okay. 18 MR. SMITH: I think that's -- 19 THE COURT: Where did she go to work; do 20 you know? Was that when she started -- 21 MR. SMITH: SAIC. 22 THE COURT: At where? 00100 1 MR. SMITH: SAIC. 2 THE COURT: The Science Applications 3 International? 4 MR. SMITH: Yes. 5 THE COURT: Okay. And she has been there 6 every since. 7 MR. SMITH: As far as I know. 8 THE COURT: All right. And you were 9 working during that period of time? 10 MR. SMITH: I was working during part of 11 it. 12 THE COURT: Okay. When did you quit 13 working? 14 MR. SMITH: I believe January 2002. 15 THE COURT: And when she went to work for 16 SAIC you quit working. 17 MR. SMITH: Well, we overlapped for a 18 while. 19 THE COURT: Okay. And why did you quit? 20 MR. SMITH: Well, that was our plan. 21 That's what we had agreed upon. 22 THE COURT: Tell me what it was. What was 00101 1 your plan? 2 MR. SMITH: Was that we were going to put 3 her through to get an MBA. And then I was going to 4 stay home and take care of our child while she 5 supported the family. That was our plan and -- 6 THE COURT: And you last worked, then, at 7 the Department of Labor? Is that your last 8 employment? 9 MR. SMITH: Well, I've worked at Fort 10 Belvoir since then. 11 THE COURT: But, I mean, before you quit -- 12 MR. SMITH: At that point, yeah. 13 THE COURT: All right. So you quit in '02. 14 And when did you go back to work after that? 15 MR. SMITH: I didn't really quit. I pushed 16 very hard for work at home because this job had me 17 do nothing anyway. 18 THE COURT: Uh-huh. 19 MR. SMITH: And I almost got it. But 20 instead they let me go. 21 THE COURT: "They" being Department of 22 Labor? 00102 1 MR. SMITH: Well, I wasn't directly 2 employed, but this contracting company, yes. 3 THE COURT: Okay. All right. And that was 4 in '03? 5 MR. SMITH: No. That was in January of 6 2002. 7 THE COURT: Okay. So you stayed home to 8 take care of Liam after that? 9 MR. SMITH: Yes. I'd take care of him and 10 then when he'd go to school I'd put him on the bus 11 and get him off the bus in the afternoon and -- 12 THE COURT: Okay. 13 MR. SMITH: -- do his homework with him, 14 stuff like that. 15 THE COURT: And after '02 you did some work 16 at Belvoir after that, correct? 17 MR. SMITH: I don't think I started that 18 until 2003. 19 THE COURT: 2003. Okay. So it was the 20 next year when you worked at Belvoir. 21 MR. SMITH: Yes. 22 THE COURT: And that, you said, was a 00103 1 full-time job for you? 2 MR. SMITH: Yes. 3 THE COURT: It was full time, okay. And 4 that was with CSC? 5 MR. SMITH: Yes. 6 THE COURT: And you quit that when? In 7 '04? 8 MR. SMITH: I didn't quit. I was unable to 9 return. 10 THE COURT: And that was because of what? 11 MR. SMITH: Because of the court case and 12 the plaintiff refusing to schedule hearings around 13 my work schedule. 14 THE COURT: All right. And -- 15 MR. SMITH: Employers kind of like you -- 16 to be able to count on you showing up. 17 THE COURT: And you weren't employed in 18 '05? 19 MR. SMITH: No. 20 THE COURT: And in January of '06, then, 21 you started your current job? 22 MR. SMITH: Yes. 00104 1 THE COURT: Why have you not gone full 2 time? 3 MR. SMITH: Again, I'm still stuck with 4 this court case. 5 THE COURT: Okay. So -- 6 MR. SMITH: I am not good at this. 7 THE COURT: You think the court case is 8 taking -- 9 MR. SMITH: You refuse to let me have funds 10 for an attorney. So I have to spend an enormous 11 amount of time to come up with these motions that 12 you just ignore. 13 I'm not going to give up on my son. Until 14 I can get a court to respect my parental rights, my 15 focus in life is fighting this stupid crap legal 16 system to get my parental rights. I do not give a 17 damn about a career until that occurs. 18 THE COURT: If you have visitation, your 19 wife has said she wouldn't object to weekend 20 visitations. In terms of you living in Dublin, if 21 she has custody and you have visitations, what type 22 of visitations would you propose to have? 00105 1 MR. SMITH: I -- the best thing is to have 2 him come live with me. 3 THE COURT: I realize that. 4 MR. SMITH: You refuse to -- 5 THE COURT: Let's go to the next choice. 6 If he doesn't come to live with you, what would you 7 like? 8 MR. SMITH: It's a ridiculous question. As 9 I have proved, she doesn't follow visitation. When 10 I exercise visitation she calls the police and 11 accuses me of kidnapping him and extortion. 12 THE COURT: The question is -- 13 MR. SMITH: We go to court, you don't do a 14 damn thing about it. What kind of visitation -- 15 THE COURT: Let me say, Mr. Smith, first of 16 all, your profanity has to stop or I will find you 17 in contempt, okay? 18 MR. SMITH: Is it going to be civil or 19 criminal? 20 THE COURT: It will be contempt. 21 MR. SMITH: No. There's not plain 22 contempt. There's civil or criminal. 00106 1 THE COURT: I'm not going to debate the 2 type of contempt. 3 MR. SMITH: I know you're running a 4 Kangaroo Court here, but you need to pick one option 5 or the other. 6 THE COURT: I'm telling you, Mr. Smith, if 7 your profanity continues, you will be incarcerated. 8 You understand that? 9 MR. SMITH: I figure you're going to do 10 that to me sooner or later any way. You've shown no 11 respect for me or my son. 12 THE COURT: And back to the question. If 13 you had visitation with Liam, what type of 14 visitation do you think would work out given the 15 four hours between Dublin and where he now resides? 16 MR. SMITH: Unless the Court takes a 17 significant change in attitude and actually enforces 18 visitation, and when my wife doesn't comply, when 19 she makes ridiculous allegations, follows it up -- 20 THE COURT: Let's assume the Court -- 21 MR. SMITH: -- and punishes her, it doesn't 22 make a difference what the -- 00107 1 THE COURT: Let's assume the Court will 2 enforce visitation. What visitation would you ask 3 the Court to enforce? Do you want weekends, one 4 weekend a month, two weekends a month? 5 MR. SMITH: I want every weekend. 6 THE COURT: You want every weekend a month? 7 Are you going to be able to drive up and pick Liam 8 up and take him back to Dublin every weekend in the 9 month? 10 MR. SMITH: I think we should take turns 11 driving him back and forth. If the Court would 12 actually be supportive rather than encourage us to 13 fight, we would both be living close together and be 14 able to see him frequently. 15 It's only this whole attitude of one winner 16 and that she gets to do anything she wants without 17 regards to what's good for him and especially that 18 causes me trouble. That's what got us here. If it 19 wasn't for the negligence of the Court -- 20 THE COURT: So if you had your choice -- 21 MR. SMITH: -- we would still be living two 22 or three miles apart, seeing him everyday. 00108 1 THE COURT: -- you'd like to do every 2 weekend a month. Would you pick Liam up or would 3 you return him at the end of the visitation? 4 MR. SMITH: I would prefer to pick him up. 5 THE COURT: Okay. 6 MR. SMITH: But I think that that solution 7 would be for us to try and work out how both of us 8 could see him frequently rather than just doing 9 weekends. 10 THE COURT: I take it you've been unable to 11 do that, though. 12 MR. SMITH: The Court has been unwilling to 13 assist in this. When you tell somebody they can 14 call the police when you have in paper -- the court 15 order that you got it that day. When I have a 16 written statement from her saying you have 17 visitation that day and I'm just trying to stay out 18 of jail, you know. 19 THE COURT: All right. Let me ask you, 20 Mr. Smith. Are there any other issues of equitable 21 distribution you want the Court to address? 22 MR. SMITH: I believe we need to address 00109 1 the economic cost of her affair. That has been a 2 huge cost to our marriage. 3 THE COURT: Let me take you, for example, 4 through the escrow and the sale of your home. 5 MR. SMITH: Yes. 6 THE COURT: How much of those proceeds -- 7 how do you think that should be divided? 8 MR. SMITH: I have proposed a reasonable 9 list which in my view leaves us -- so we can skip 10 arguing who did what to whom for the money anyway. 11 My proposal is that we use the escrow account to pay 12 off the remaining marital debts and divide the 13 leftover based on percentage of who earned the money 14 during our marriage. 15 THE COURT: Okay. Let's stop on marital 16 debts. What marital debts are left from your 17 marriage? Do you have a list of those anywhere? 18 MR. SMITH: Yes, I do. 19 THE COURT: Do you want to offer that at 20 this time? 21 MR. SMITH: If you would like a copy. 22 Although if you ask me questions and I don't have 00110 1 it, I won't be able to answer them, but -- 2 THE COURT: Okay. That's the only one 3 you've got? 4 MR. SMITH: Well, I previously submitted 5 it. I didn't realize you would want another copy. 6 THE COURT: Take a look at that. Then I'll 7 ask you the questions based on that. 8 What kind of debts do you show listed on 9 that document? 10 MR. SMITH: Five different credit cards for 11 a total of $30,737. 12 THE COURT: Now, whose name are those 13 credit cards in? 14 MR. SMITH: Some of them vary. But those 15 were the ones that were listed as marital debts, not 16 separate debts. 17 THE COURT: Ms. Vardy, did you do a marital 18 debt listing or do you have something you want to 19 offer? 20 MS. VARDY: I wanted -- Your Honor, he's 21 taking it from -- this is his version of the -- 22 THE COURT: Okay. Again, let's go through 00111 1 this again. You don't have an income expense sheet 2 you want to offer at this time? 3 MR. SMITH: I have already submitted it 4 once. I'm not aware that I have another copy. 5 THE COURT: You've requested spousal 6 support -- 7 MR. SMITH: But it's not lengthy for the 8 $400 a month. 9 THE COURT: Have you prepared any listings 10 with regards to your spousal support request? Any 11 calculations at all on a separate sheet? 12 MR. SMITH: No. I didn't see a need for 13 calculations. I think that she owes me somewhat for 14 spending the money and putting her through school. 15 I don't see that you can put a calculation on that. 16 THE COURT: In terms of your child support, 17 have you done a child support calculation worksheet? 18 MR. SMITH: Yes, I have. 19 THE COURT: Do you want to offer that at 20 this time? This is your equitable distribution 21 worksheet? 22 MR. SMITH: Yeah. I have an equitable 00112 1 distribution one and child support. 2 THE COURT: Okay. I'll take both of those 3 if you want to offer those. We'll mark them as -- 4 you say you think you can find the income sheet in 5 the file if you go through the file? 6 MR. SMITH: Yeah. Although mine -- I have 7 $400 a month. About $250 of that goes to my brother 8 for rent. 9 THE COURT: Maybe if we just talk about 10 your expense. You say it's not a long list anyway. 11 MR. SMITH: No. I pay somewhere around $50 12 for gas. 13 THE COURT: Rent, you pay how much? 14 MR. SMITH: I pay -- he -- I pay partial 15 rent at $250. 16 THE COURT: That a month? 17 MR. SMITH: Yeah. 18 THE COURT: Okay. And do you pay any 19 utilities at all? 20 MR. SMITH: No. That's what the partial 21 is. He has got what he figures he wants for rent. 22 As long as I pay what he actually spends on me, he's 00113 1 reasonably happy. 2 THE COURT: Okay. You have any car 3 payments or anything like that? 4 MR. SMITH: No. 5 THE COURT: You have insurance on your car, 6 that type of payment? 7 MR. SMITH: I can't answer that. 8 THE COURT: Okay. Do you have any monthly 9 expenses on your car? Maintenance, anything like 10 that? 11 MR. SMITH: I have irregular maintenance. 12 My main expense besides the rent is my heartburn 13 medication. 14 THE COURT: Okay. I want to kind of track 15 through to see if you have any others. You don't 16 know what you spend monthly on maintenance or 17 gasoline for your car? 18 MR. SMITH: No. Not exactly. I don't keep 19 records. 20 THE COURT: Okay. Do you have any health 21 insurance cost or health costs? 22 MR. SMITH: No. My wife provides health 00114 1 insurance. 2 THE COURT: Food, what do you pay for food 3 each month? 4 MR. SMITH: It varies. 5 THE COURT: It varies? 6 MR. SMITH: Well, I eat with my brother a 7 lot of the times. But I do have my own kitchen and 8 refrigerator, so since I have little money -- 9 THE COURT: How much would you say you 10 spend on food? 11 MR. SMITH: I do not track that. 12 THE COURT: You don't have any idea? 13 Clothing, do you know what you spend on 14 clothing on a monthly basis? 15 MR. SMITH: Nothing. 16 THE COURT: And what's the other 17 expenditures you say you do have? 18 MR. SMITH: I have heartburn medication. 19 THE COURT: Okay. How much do you pay for 20 that each month? 21 MR. SMITH: I spend about 30 or 40 bucks a 22 month on that. 00115 1 THE COURT: So rent at $250 and $40 for the 2 heartburn makes that $290 on monthly expenses. 3 MR. SMITH: Plus I have to put gas and 4 stuff in the car, but what they are, I don't know. 5 THE COURT: How much? Can you estimate 6 what they are? 7 MR. SMITH: Who knows? $50 or $60. I 8 drive about 40 miles each time back and forth to go 9 to work, so -- 10 THE COURT: $60 for gas? 11 MR. SMITH: Yeah. 12 THE COURT: Okay. Any other expenses that 13 you have? 14 MR. SMITH: No. 15 THE COURT: That's $350 out of $400. So 16 you have $50 over a month -- left over each month. 17 MR. SMITH: I do pay for long distance so I 18 can call Liam and court costs. 19 THE COURT: That's not part of your rent? 20 MR. SMITH: No. 21 THE COURT: That's not part of the $250. 22 MR. SMITH: No. 00116 1 THE COURT: Do you know what you pay for 2 the telephone on a monthly basis? 3 MR. SMITH: I don't pay for a telephone. 4 THE COURT: I thought you said you pay for 5 long distance. 6 MR. SMITH: For long distance, not for a 7 telephone. I use my brother's phone. 8 THE COURT: How much do you pay for the 9 long distance? 10 MR. SMITH: It depends on how much I call. 11 5 cents a minute. 12 THE COURT: Okay. Do you know monthly what 13 you would pay, approximately? 14 MR. SMITH: No. 15 THE COURT: Any other monthly expenses that 16 you have? 17 MR. SMITH: Court costs, but there's no 18 specific amount for that. 19 THE COURT: Okay. All right. 20 I have child support guideline worksheet. 21 We'll mark that as number -- letter A on behalf of 22 the defendant. And defendant's proposed 00117 1 distribution and marital property as B. 2 First USA Bank One as a credit card. Are 3 you making payments on that credit card? 4 MR. SMITH: No. I'm not making payments on 5 anything. 6 THE COURT: Okay. So do you hold these 7 credit cards, though? 8 MR. SMITH: Like I said, I can't answer 9 questions without the list. There are several 10 credit cards that I have defaulted on, but they 11 still want their money. But I'm not making payments 12 and some of those are ones that my wife listed as 13 being marital debt. 14 THE COURT: Are they -- are they joint 15 credit cards? Let's take a look at what she has 16 got. 17 MR. SMITH: Well, what I've given you is 18 her list with my corrections to it. 19 THE COURT: Okay. 20 MR. SMITH: Because that was my 21 understanding you wanted me to make my -- 22 THE COURT: First USA Bank One joint 00118 1 account shows $6,002.34 and $4,000.68. She has made 2 some payments to that already. Dyhal Chemical. 3 Credit Union. Do you show that? You don't show 4 that. 5 MR. SMITH: No, I don't. I have filed a 6 notice of fraud because the income -- or the 7 statements she provided are completely false and she 8 knows it. Loretta is well aware the Dyhal Chemical 9 one, I paid that off and that it is no longer -- 10 THE COURT: Is that joint card or joint 11 account or separate? 12 MS. SMITH: It was -- 13 MR. VARDY: And Your Honor, we do accept 14 that Mr. Smith paid that off. 15 THE COURT: He paid that one off? 16 MS. VARDY: He did pay that one off, yes, 17 Your Honor. 18 THE COURT: Okay. Wachovia Bank, formally 19 First Union. You've got a Wachovia Bank, $4,156. 20 That was joint. Okay. And that's not paid that's 21 still undue -- unpaid. 22 First Union in Wesley Smith's name, $1,030, 00119 1 unknown. Is that still due? Do we know if that's 2 due? Do you know, Mr. Smith, has that been paid? 3 MR. SMITH: Not without looking at my 4 sheet. 5 THE COURT: Okay. Well, it's not on your 6 sheet. That's why I asked. You don't know if that 7 was paid? 8 There is a First Union on here, but it's 9 $9,000. Here, why don't you take the sheet back and 10 take a look at that. 11 You want to mark that? Mark that as C on 12 behalf of the defendant. 13 She shows Wachovia Bank, First Union joint 14 account. That one is paid. First Union in your 15 name, $1,000. They don't know the status of that. 16 Do you know the status of that? 17 MR. SMITH: Yeah. That is $9,979. 18 THE COURT: As of when; do you know? 19 MR. SMITH: That is as of 6/28/05. 20 Although that has not changed for a year or two. 21 THE COURT: Okay. That -- that's your 22 credit card? Do you know how much was due on that 00120 1 as of September '02. 2 MR. SMITH: I know what it says here. It 3 says $1,030, but that's not the date of separation, 4 and as of the date of separation I believe it would 5 be about $9,000. 6 THE COURT: All right. You think there's 7 still $9,000 due on that? 8 MR. SMITH: Yeah. It hasn't changed. I 9 haven't been making payment. 10 THE COURT: Okay. Capital One Master Card, 11 do you have that on your list? 12 MR. SMITH: Yes. 13 THE COURT: $3,400 and $1,206. So that 14 $1,206 is what's due now? 15 MR. SMITH: Yes. 16 THE COURT: Is that a joint card; do you 17 know? 18 MR. SMITH: Yes. 19 THE COURT: It's a joint card. 20 MR. SMITH: I'm not sure if that's joint or 21 just hers, but it was on the marital list, so I put 22 it on the list to pay off. 00121 1 THE COURT: All right. And I have Citibank 2 Educational Loan, $9,509. 3 MR. SMITH: That, I did not put on the 4 list. I felt that since she has got the MBA she 5 should be responsible for paying off what's left of 6 her loan. 7 THE COURT: Okay. 8 MR. SMITH: I've already paid off a 9 significant amount -- 10 THE COURT: Is the loan with Citibank a 11 joint one; do you know, or separate? 12 MR. SMITH: That's just in her name, I 13 believe. 14 THE COURT: Is that separate in your name? 15 I realize it -- 16 MS. VARDY: I believe it was just her name. 17 THE COURT: Separate account, but you feel 18 it should be treated as joint material; is that your 19 position? 20 MS. VARDY: Yes, Your Honor. 21 THE COURT: Okay. Now, you have others on 22 your list, Mr. Smith? 00122 1 MR. SMITH: And Chase and Exprise 2 (phonetic). 3 THE COURT: Wait a minute. Let's take one 4 at a time. How much do you show on Chase? 5 MR. SMITH: It's the same one. They 6 changed names. It's slash. 7 THE COURT: All right. Chase what? 8 MR. SMITH: Slash Exprise. That's $11,328. 9 THE COURT: And what's that for; do you 10 know? Was it a joint account? 11 MR. SMITH: Let's see. I'm not -- I think 12 that was in my name, but that was used while we were 13 still living together. I largely used it to pay 14 attorney fees. 15 THE COURT: Do you know is that a joint 16 account, ma'am or is it -- 17 MS. SMITH: That was not any account with 18 my name. 19 THE COURT: That's his separate account, as 20 far as you know? 21 MS. SMITH: Yes. 22 THE COURT: Okay. What account do you have 00123 1 on there, Mr. Smith? Any other credit cards? 2 MR. SMITH: Well, that one was -- was 3 listed at $9,000 as of 6/2003. And that's the end 4 of the list that I propose paying off out of the 5 escrow account before dividing the funds. 6 THE COURT: Right. That's what I asked. 7 Is that still due? 8 MR. SMITH: Yes. 9 THE COURT: Okay. And any other accounts 10 you got on there? 11 MR. SMITH: Not that I propose paying out 12 of the escrow account. 13 THE COURT: Okay. All right. Let me take 14 a look at that and see what else you've got on 15 there. 16 What's this sheet here? 17 MS. VARDY: Oh, I think I passed that up. 18 It's his copy because you didn't have one. 19 THE COURT: Okay. I think this is the same 20 thing. You can have it back. Do you need that 21 back? 22 MS. VARDY: Yes. 00124 1 THE COURT: All right. Let me go back to 2 the date of separation because you raised an issue 3 of that, Mr. Smith. Let me ask you about that 4 again. 5 She has gone through the history. She 6 felt that the separation was since September 17th of 7 '02. She went out and she said then you moved out 8 in November and December of '02, and I think her 9 position was it was returned on December -- I guess 10 January 2nd of '03. 11 And then June '03 she moves out to the 12 Manassas Mill Road address. It's her position that 13 she lived in the same household but separate 14 bedrooms. 15 MR. SMITH: That has already been ruled on 16 by a court and they determined we were not separate. 17 I think it's inappropriate to relitigate that. 18 THE COURT: Do you know what court ruled on 19 that? 20 MR. SMITH: J&DR. 21 THE COURT: Okay. 22 MR. SMITH: And in fact -- 00125 1 THE COURT: What's your position with 2 regards to date of separation? 3 MR. SMITH: Well, I filed a motion on that. 4 Number 55. My position is that it should be 5 somewhere between June of 2003 and December of 2003. 6 As her statement was incorrect, I did not move out 7 of the house. In November and December I was 8 visiting my mother in Michigan, who was having 9 surgery for lung cancer. 10 THE COURT: When was that? 11 MR. SMITH: November and December 2003. 12 THE COURT: 2002 or 2003? 13 MR. SMITH: Oh, 2002, yes. And I was up 14 there helping take care of her. 15 THE COURT: And that was in Michigan? 16 MR. SMITH: Yes. 17 THE COURT: And when did you move back? 18 MR. SMITH: I didn't move out so I came 19 back -- 20 THE COURT: Came back. 21 MR. SMITH: -- about -- 22 THE COURT: December of 2002. 00126 1 MR. SMITH: -- about the 25th or 26th of 2 December. 3 THE COURT: Okay. And did you cohabit as 4 man and wife? 5 MR. SMITH: We did live together and share 6 household items and chores and stuff. 7 THE COURT: Did you have a -- 8 MR. SMITH: We were not having sex, no. 9 THE COURT: No relations after that date? 10 MR. SMITH: But as my wife informed me in 11 discussing divorce, she had a lengthy list of what 12 we would have to do to be considered separate while 13 living in the same house. And she did not do those 14 items. 15 She said we would have to agree and keep 16 things separate. She did not follow through on 17 that. And in fact, in early of 2003 she even stated 18 she would be willing to stay married if I gave her 19 complete control of my life. 20 THE COURT: Okay. I want to get away from 21 your settlement discussions or discussions between 22 the two of you and ask you factually what happened 00127 1 between the two of you. 2 In December of '02 you moved back in. Did 3 you sleep -- 4 MR. SMITH: No. I came back -- 5 THE COURT: All right. Came back home from 6 Michigan. Did you sleep in separate bedrooms at 7 that time? 8 MR. SMITH: Yes. 9 THE COURT: Okay. And that continued until 10 she moved out in June of '03? 11 MR. SMITH: Yes. 12 THE COURT: Okay. 13 MR. SMITH: But in researching it through 14 the case law, that does not count as being separate. 15 We still worked together for raising Liam to some 16 extent. We still went to IEP meetings together. 17 There was some sharing of food and expenses. 18 THE COURT: And did she fix your food every 19 day? 20 MR. SMITH: She didn't fix food for me. 21 She rarely did that anyway. 22 THE COURT: Did she do your laundry and 00128 1 that sort of thing? 2 MR. SMITH: I did her laundry. 3 THE COURT: Okay. And did she clean the 4 household, or who cleaned the home? 5 MR. SMITH: We both cleaned the house. We 6 both did chores. Like I said, the J&DR Court had 7 already ruled that didn't count as being separate. 8 THE COURT: Okay. So you understand this 9 Court has to make its determination as to what the 10 appropriate separation date is as part of the 11 divorce decree. J&DR doesn't do the divorce. I 12 assume you know that. 13 MR. SMITH: Yes, I'm aware of that. 14 THE COURT: All right. So this is the 15 opportunity for the Court to make that decision. 16 MR. SMITH: But we even shared tax returns. 17 And I filed a motion which I looked up case 18 references, which I'd appreciate you start looking 19 at my case rulings because I researched for these 20 before you start denying things. And it's quite 21 clear that the courts in Virginia would not have 22 considered us being separate. 00129 1 THE COURT: Okay. So I understand your 2 legal argument. 3 MR. SMITH: Sex is not a required part of 4 being married. 5 THE COURT: All right. Let me ask, 6 Mr. Fahy, would you like to make your report as 7 guardian ad litem at this time? 8 MR. FAHY: Your Honor, I filed a document 9 as the Court directed me to on or before May 1. I 10 do have my copy if the Court wishes to look at that. 11 THE COURT: I'm probably going to have to 12 do that. 13 MR. SMITH: Judge, I must make an objection 14 to his report. 15 THE COURT: Okay, sir. 16 MR. SMITH: His report is completely, 17 totally unfounded. It's unprofessional. Its sole 18 purpose is to mislead the Court while not providing 19 factual statements that it ought to. It does not 20 mention anything about a child abuse complaint filed 21 with CPS. One would think that in a custody case 22 that's something the Court would be interested in. 00130 1 He simply does not mention it. 2 THE COURT: I'll give you an opportunity to 3 testify to all of that. 4 MR. SMITH: He does not mention that our 5 son has been diagnosed with a mental illness. And 6 largely why is that? He's depressed because he 7 misses his father. Of course he doesn't put that in 8 the report. He goes ahead and he does not 9 mention -- 10 THE COURT: You know when you filed that 11 report, Mr. Fahy? 12 MR. FAHY: I filed it on April 27th. 13 THE COURT: April 27th of this year? 14 MR. FAHY: Yes. 15 THE COURT: Okay. 16 MR. SMITH: He also does not mention the 17 wife's mental illness and uncontrollable rage, which 18 I submitted proof. Now -- 19 THE COURT: Okay, sir. I'm going to 20 overrule your objection to making a report to the 21 Court, Mr. Smith. I need to have Mr. Fahy do that 22 at this time. 00131 1 Mr. Fahy, you want to address that with 2 regards to your report? 3 MR. FAHY: I'm sorry, address what? 4 THE COURT: Address your report at this 5 time. 6 MR. FAHY: Your Honor, what I did was 7 prepare a memorandum attempting to address the 8 statutory considerations under Virginia Code 9 section 20-124.3. 10 THE COURT: Okay. I have that in front of 11 me. Ms. Vardy was kind enough to give me a copy of 12 that. You've gone though each of the factors; is 13 that what you've done? 14 MR. FAHY: I have done that. 15 THE COURT: Okay. 16 MR. FAHY: And summarized my thoughts or 17 findings. 18 THE COURT: All right. Give me just a 19 minute, if you don't mind, and I can look this over 20 and then I'll see if the parties have any questions 21 they'd like to ask you. 22 (Pause in the proceedings.) 00132 1 THE COURT: Do you have a copy of this, Mr. 2 Smith? I assume you do. 3 MR. SMITH: Yes. I do and I have filed a 4 motion to strike his report. 5 THE COURT: All right. I'll hear that in 6 just a minute. Let me have him submit the report 7 first. 8 Okay. You've got a couple of statements 9 on here. Let me ask you, Mr. Fahy, so we're clear. 10 Did I understand that some proceeds were withdrawn 11 from that escrow and paid you. 12 MR. FAHY: Yes, sir. 13 THE COURT: Was it the $2,010 that was 14 paid? 15 MR. FAHY: I would have to actually 16 calculate that. I don't have that figure on top of 17 my head. That sounds like a ballpark figure. 18 THE COURT: You've got one dated 19 November 5, 2004, $2,010.50, and I assume that has 20 been paid. 21 MR. FAHY: Yes, sir. I have been paid 22 either directly by Mr. Smith and then at a point 00133 1 where he refused -- 2 MR. SMITH: Objection. 3 MR. FAHY: -- to make further payments. 4 MR. SMITH: I object to him testifying 5 without being placed under oath. 6 THE COURT: Overruled. Overruled, 7 Mr. Smith. 8 MR. SMITH: I did not refuse to pay -- 9 THE COURT: I'm going to let him report as 10 guardian ad litem. 11 MR. SMITH: I was unable. 12 MR. FAHY: Thereafter I sought the Court's 13 permission to submit a bill -- 14 MR. SMITH: Excuse me, Judge. I have to 15 object to your ruling. 16 MR. FAHY: -- to the escrow lawyer -- 17 THE COURT: Overruled, Mr. Smith. 18 MR. FAHY: -- and I received payments. 19 THE COURT: How much -- how much did you 20 receive altogether; do you know? You show a credit 21 of $2,010.50 and then you show a credit of $1,000 on 22 the August 6th bill, deposited June 11th, '04. 00134 1 MR. FAHY: Your Honor, subject to 2 correction I received $2010.50 and then $575. 3 Previous to that, Mr. Smith paid me -- 4 THE COURT: Is that the $1,000? 5 MR. FAHY: I believe so. 6 THE COURT: Okay. Who did the $575 come 7 from; do you remember? 8 MR. FAHY: That was -- that was on a 9 statement dated June 19. It just brings up the date 10 of activity in court and out of court since the 11 previous statement. 12 THE COURT: Okay. So you were paid 13 $2,010.50 plus $575 plus $1,000 to date; is that 14 what you're saying? 15 MR. FAHY: I believe that's correct. 16 THE COURT: $3,585.50. So you know what 17 your balance is due? 18 MR. FAHY: I have not calculated a balance 19 since that last statement in June of '05. I can do 20 that by the end of the day. 21 THE COURT: All right. You want to submit 22 that to the Court? 00135 1 MR. FAHY: Yes, sir. 2 THE COURT: All right, sir. I'll ask you 3 to do that. I've read your report now. Do you have 4 any update or any additions you'd like to make since 5 your report was filed? 6 MR. FAHY: No, sir. 7 THE COURT: It looks like it was back on 8 April 27, '06. 9 MR. FAHY: No additions. 10 THE COURT: All right. Let me see if 11 counsel has any questions of guardian ad litem. 12 Do you have any questions you'd like to 13 ask? 14 MS. VARDY: No, Your Honor. 15 THE COURT: Mr. Smith, do you have any 16 questions you'd like to put to the guardian ad 17 litem? 18 MR. SMITH: Yes, sir. 19 THE COURT: Okay. Go ahead. I'll let you 20 ask those now, if you like. 21 MR. SMITH: I would like Mr. Fahy to 22 explain if he was aware that there was an abuse 00136 1 complaint filed with CPS. 2 MR. FAHY: Yes. 3 MR. SMITH: What was the nature of the 4 compliant? 5 MR. FAHY: My recollection at this point is 6 there have been -- there has been more than one 7 complaint over the course of this child's life. 8 MR. SMITH: More than one CPS complaint? 9 MR. FAHY: I believe so. And the 10 information that I had was there was not a ruling of 11 founded complaint. So my understanding is CPS has 12 not concluded from its investigation that there was 13 a founded complaint or taken any action against 14 either party. 15 MR. SMITH: Do you know who filed the 16 complaint? 17 MR. FAHY: I believe that the mother filed 18 a compliant on at least one occasion. 19 MR. SMITH: And it didn't occur to you that 20 a party falsely filing complaints of abuse, that 21 didn't occur to you to mention to the Court as being 22 something relative to this case, in particular the 00137 1 willingness of one parent to cooperate with the 2 other? 3 Doesn't that filing of a complaint -- 4 excuse me. Does not filing a false claim of abuse 5 in an attempt to gain custody or keep the child away 6 from the other parent, does that not count as being 7 uncooperative, unsupported? 8 MR. FAHY: I don't think the mother filed a 9 false complaint. 10 MR. SMITH: You think it occurred? 11 MR. FAHY: It did. 12 MR. SMITH: So you're disagreeing with CPS 13 that it didn't happen? 14 MR. FAHY: No. I'm disagreeing with you. 15 MR. SMITH: Well, you -- didn't you just 16 say CPS found that the complaint was unfounded? 17 MR. FAHY: I interpreted what they did to 18 mean that the instant they investigated was not 19 sufficient for them to take some further action. 20 MR. SMITH: Are you aware of the dates that 21 they said the incident took place on? 22 MR. FAHY: I don't recall dates at this 00138 1 moment. 2 MR. SMITH: No, you wouldn't. Because the 3 reason they dropped the complaint -- 4 THE COURT: Well, Mr. Smith, you can't 5 argue with him. You can only ask him questions. 6 MR. SMITH: Okay. So are you aware of the 7 reason they dropped the compliant was that they 8 specified was a time period which I had not had 9 access to our son? And thus could easily prove that 10 if any abuse took place it wasn't me? Are you 11 aware -- 12 THE COURT: Give him a chance to answer the 13 question, Mr. Smith. 14 MR. FAHY: I don't understand your 15 question. 16 MR. SMITH: I said a complaint of abuse 17 said it took place on a specific day and when CPS 18 looked into it it was determined that I didn't have 19 visitation with him either for some period before or 20 after that date. You're not aware that's how it was 21 excluded from me having anything to do with it? You 22 didn't look into it enough to find that out? 00139 1 THE COURT: One question at a time, 2 Mr. Smith. 3 MR. SMITH: Sorry. 4 THE COURT: You want to answer that, if you 5 can? 6 MR. FAHY: If I understand the questions. 7 I'm not -- I have no recollection of the date issue 8 that he's inquiring about. 9 THE COURT: Okay, sir. Any other 10 questions, Mr. Smith? 11 MR. SMITH: Oh, yeah. I've got lots of 12 questions. Your report did not mention any mental 13 illness on the part of our son. Why is that? Were 14 you unaware of it? 15 MR. FAHY: I addressed what I thought was 16 the principle mental or physical condition of the 17 child. 18 MR. SMITH: And you didn't consider a 19 condition that was severe enough that the mother 20 felt she needed the service of a clinical 21 psychologist? You -- that didn't strike you as 22 something you should have mentioned in your report? 00140 1 MR. FAHY: Well, I made the decision to 2 write the report as you see it. I am aware that the 3 mother has cared for the child and my conclusion was 4 that the mother has taken all of the appropriate 5 actions that meet the physical and mental needs of 6 the child. 7 MR. SMITH: So based on gender, you assumed 8 she was doing everything right? You didn't look 9 into it yourself? 10 MR. FAHY: No. I did inquire and it has 11 not got anything to do with gender. 12 MR. SMITH: So did you obtain a copy of the 13 report from the psychologist? 14 MR. FAHY: I spoke to the child 15 psychologist -- 16 MR. SMITH: That's not what I asked you. I 17 asked you, did you obtain a copy of the report? Yes 18 or no. 19 MR. FAHY: I have no report from the 20 psychologist. 21 MR. SMITH: You did not make an effort to 22 obtain a copy of the report? Okay. Hold on, I've 00141 1 got lots more questions. 2 So am I correct then you didn't make the 3 effort to find out what the official diagnosis was? 4 MR. FAHY: I spoke to the child 5 psychologist. 6 MR. SMITH: No. Answer my question. Did 7 you make the effort to find out what the official 8 diagnosis was? And if so, can you tell me what it 9 was. 10 MR. FAHY: No. 11 MR. SMITH: So you're telling me as a 12 guardian appointed to represent my son, you didn't 13 bother to find out what he was diagnosed with or why 14 he was seeing the psychologist? 15 MR. FAHY: I had what I believed to be an 16 appropriate conversation with the psychologist about 17 your son. 18 MR. SMITH: That does not at all answer my 19 question. 20 THE COURT: You're going to have to ask 21 your next question, Mr. Smith. 22 MR. SMITH: All right. So you're 00142 1 completely unaware of my son's depression? 2 MR. FAHY: I wouldn't agree with that. 3 MR. SMITH: Well, according to this report 4 he was diagnosed with the DSM-III-R 300.4, which is 5 a type of depression that must last over one year. 6 So over the year that you -- 7 MS. VARDY: Your Honor -- 8 MR. SMITH: -- you've been representing 9 this child -- 10 MS. VARDY: -- I'm going to object. 11 THE COURT: What's the form of the 12 objections? 13 MS. VARDY: Mr. Smith is making statements 14 that I do not believe he has the background to make 15 concerning -- there's nothing in evidence about the 16 diagnosis -- 17 MR. SMITH: Yes, there is. 18 THE COURT: I sustain the objection, 19 Mr. Smith. He just said he didn't see the report, 20 so I don't think he's going to be able to answer 21 questions on that report. 22 MR. SMITH: I'm not asking him questions 00143 1 about what is in the report other than the criteria 2 for the diagnosis means this has been going on for a 3 year. If he has been having interviews with the 4 child -- 5 THE COURT: I think he has answered that 6 question, too. He said he didn't know what the 7 diagnosis was because he didn't see that report. He 8 talked to the psychologist. 9 MR. SMITH: All right. 10 MR. VARDY: Your Honor, I'm going to object 11 to the fact that Mr. Smith is testifying to what the 12 conditions of the diagnosis is. 13 THE COURT: I've ruled on the objection, 14 Ms. Vardy. Let's proceed. 15 MR. SMITH: I'd like to submit the report 16 then. 17 THE COURT: It's not your time to put in 18 evidence yet. 19 MR. SMITH: All right. We'll move on to 20 the next one. Did you bother to check with the 21 school to find out how he was behaving in school? 22 MR. FAHY: I saw school records and I spoke 00144 1 periodically to the mother about the child's 2 progress in school. 3 MR. SMITH: And as -- 4 MR. FAHY: I might also add that I -- after 5 you took the child to Michigan in December of 2004, 6 I believe in a phone call that I initiated many of 7 them on -- 8 MR. SMITH: This doesn't answer my 9 question. You're supposed to be answering my 10 questions. 11 THE COURT: Mr. Smith, you've got to let 12 him finish his response, sir, okay? 13 MR. FAHY: I sought to engage you in an 14 effort -- 15 MR. SMITH: Objection. I asked him about 16 school performance. 17 THE COURT: Overrule the objection, 18 Mr. Smith. Let him finish his response. 19 MR. FAHY: I sought to engage you in an 20 effort to resume your visitation and work in the 21 best interest of the child and you refused to have 22 any further dealings with me. 00145 1 MR. SMITH: Do you have any evidence to 2 support that baseless accusation? My recollection 3 is you never, ever attempted to contact me from that 4 point on. 5 THE COURT: Mr. Smith, let me interrupt. 6 You can't argue with him. You can only ask 7 questions. 8 MR. SMITH: Well, I'm just asking if he has 9 any evidence to support that he tried to talk to me. 10 THE COURT: That's an argumentive question, 11 sir. Move on to your next question, if you would. 12 MR. SMITH: So you talked to the school, 13 you talked to the wife. Did you find anything of 14 interest to put in your report? 15 THE COURT: I don't know what that question 16 means, Mr. Smith. You have to clarify it. 17 MR. SMITH: Did you bother to find out that 18 our son has been having behavior problems at school 19 assaulting repeatedly many students? 20 MR. FAHY: I'm aware of behavior problems 21 in school. 22 MR. SMITH: And interactions requiring the 00146 1 principal? Requiring our son being taken out of the 2 classroom? 3 MR. FAHY: I don't have that specific 4 recollection, but the substance of my -- 5 MR. SMITH: No. You answered my question. 6 THE COURT: Let him finish, Mr. Smith. 7 Go ahead, Mr. Fahy. 8 MR. FAHY: I am of the opinion that the 9 mother has done an admirable job in meeting the 10 needs of this child educationally and otherwise. 11 MR. SMITH: And you hold this opinion even 12 though he has behavior problems that are interfering 13 with his education? 14 MR. FAHY: I do not believe the child is 15 problem-free. But I think the mother has 16 consciously addressed his needs. 17 MR. SMITH: So you sought no need to inform 18 the Court that our son was having behavior problems 19 at school significant enough to require his withdraw 20 from the classroom, interaction with the 21 principal -- 22 THE COURT: I think he answered that 00147 1 question, Mr. Smith. 2 MR. SMITH: So you just -- 3 THE COURT: Go on to your next question, if 4 you will. He has answered that question. 5 MR. SMITH: Okay. In your report you 6 mentioned the mental health of the parents. And you 7 state that the plaintiff is in good mental health 8 and you take kind of a sideways swank [sic] at mine. 9 Did you not think it was relevant to mention the 10 plaintiff's uncontrollable rage and previous acts of 11 domestic violence? 12 MR. VARDY: Your Honor, I'm going to 13 object. 14 THE COURT: We'll let him answer the 15 question if he can. 16 MS. VARDY: Okay. 17 MR. FAHY: I'm sorry. Your question again, 18 please. 19 MR. SMITH: I said you didn't think it was 20 important to mention that the plaintiff has mental 21 health problems including uncontrollable rage and 22 has previously committed domestic violence. 00148 1 MR. FAHY: I didn't think it was 2 appropriate to say anything more about her mental 3 health than what I did say in the report. What 4 concerns me about the mental health of the parents 5 is yours. 6 MR. SMITH: My question was about the 7 mother's. Please stick with the question. 8 MR. FAHY: I'm satisfied that her mental 9 health is more than adequate to care for her child. 10 MR. SMITH: But you didn't feel it was 11 important to mention uncontrollable rage, it gets to 12 the point where she commits acts of violence? 13 THE COURT: It's the same question, 14 Mr. Smith. He has answered the question. Go on to 15 your next question. 16 MR. SMITH: So how can you justify not 17 mentioning it when you have a child who acts out and 18 hits people with a parent who responds with rage and 19 strikes out and hits people? 20 THE COURT: It's the same question -- 21 MR. SMITH: No. I'm asking, how he can 22 justify leaving that out of the report? 00149 1 THE COURT: Go on to your next question if 2 you would, please. 3 MR. SMITH: Okay. You mentioned that the 4 mother was cooperative or supportive of the child's 5 relationship with his father. And what were you 6 smoking when you wrote that? 7 THE COURT: I'll sustain any objection the 8 Court might make to that question. I think that's 9 really an inappropriate and argumentive question. 10 MR. SMITH: Well, that's how far it goes 11 because -- 12 THE COURT: That's an objectionable 13 question, Mr. Smith. I'm going to allow you to ask 14 two more question of this witness and then I'm going 15 to have to cut you off. Are there any more 16 questions you want to ask? 17 MR. SMITH: Well, I think -- more 18 questions, but let me read this. 19 You stated the wife -- or the mother was 20 supportive. Please explain to me how filing a 21 protective order on false grounds asking the Court 22 to cut off all contact including phone contact for 00150 1 two years is supportive. And how is calling the 2 police when Liam chooses to spend time with his 3 father supportive? 4 THE COURT: That's a multi-part question, 5 Mr. Smith. You've got to keep it simple so he can 6 respond to your question, okay. 7 MR. SMITH: Okay. Well, may I please ask 8 all of these? They're extremely relevant. 9 THE COURT: Give him a chance to answer. 10 Keep it simple, if you would. 11 MR. SMITH: All right. 12 THE COURT: If it's compound then it's 13 difficult to answer. 14 MR. SMITH: All right, sir. The protective 15 order, how is filing a protective order that has 16 been deemed false by the Court, which almost never 17 happens here, how is that supportive? 18 MS. VARDY: Your Honor, I'm going to have 19 to object. 20 THE COURT: Overruled. Let him answer the 21 question. He can proceed. 22 MR. FAHY: I'm sorry, the question again. 00151 1 MR. SMITH: You said the mother was 2 supportive of my relationship with my son. Yet she 3 filed a false protective order to cut off -- to 4 terminate that relationship completely. How can you 5 quantify that as supportive? 6 MR. FAHY: I don't know that that itself 7 specifically could be characterized as supportive, 8 but the essence of what's involved here, I am 9 impressed -- 10 MR. SMITH: We're just sticking with the 11 protective order. 12 MR. FAHY: -- even today -- 13 MR. SMITH: Remember, he said simple. 14 THE COURT: Mr. Smith, let him finish his 15 response. 16 MR. FAHY: We're talking about cooperation 17 between the parents. 18 MR. SMITH: Yeah, but you said to focus on 19 just the protective order. 20 THE COURT: Mr. Smith, you've got to let 21 him finish his response. 22 MR. SMITH: If it's on topic. Anything 00152 1 other than the protective order -- 2 THE COURT: Mr. Smith, stop interrupting 3 the Court and the witness. Let him finish his 4 response. 5 MR. FAHY: I am impressed even today with 6 the mother's willingness to have you continue or 7 resume visitation with your son. I think that's 8 impressive in light of all the facts in this case. 9 I myself as guardian have been -- have 10 struggled with the notions whether you should have 11 visitation at all. And it's because of your 12 contentious attitude. I think you are capable and 13 have been in the past an excellent -- 14 MR. SMITH: You're way off-topic. 15 Objection, Your Honor. He's way off-topic. I asked 16 about trying to construe a protective order is 17 supportive. 18 The next question is, please explain to me 19 how the mother calling the police when our son has 20 clearly made an effort and wishes to remain spending 21 time with his father when the last court order 22 requires her to let our son spend time with me if he 00153 1 wants, how is that supportive? Is that not an 2 example of not being unsupportive? 3 THE COURT: Mr. Smith, you keep asking more 4 questions. Just stop with the question, if you 5 will. 6 MR. FAHY: Well, the last court order, you 7 made reference in that question -- I'm not sure I 8 follow, but you made reference to the last court 9 order. The last court order that I'm aware of 10 addressing visitation is dated January of 2000 -- 11 January or February of 2005 -- 12 MR. SMITH: That's not what I'm asking. To 13 this incident -- 14 THE COURT: Let him finish, Mr. Smith. 15 MR. FAHY: -- and it terminates your 16 visitation subject to your doing certain things to 17 resume the visitation. 18 MR. SMITH: That's not the question that I 19 asked. The last court order issued prior to her 20 calling the police stated that she must allow Liam 21 to spend time with his father if he chooses, even if 22 it is not a visitation period. Now, how is her 00154 1 calling the police when Liam chooses to come in my 2 bedroom and watch QuickTime movies on the computer, 3 how is that supportive? 4 THE COURT: I don't think that's an 5 appropriate question to the guardian ad litem, 6 Mr. Smith. Go on to your next question, sir. 7 MR. SMITH: Would you consider that 8 unsupportive? 9 THE COURT: That's the same objection, it 10 seems to me, Mr. Smith. I think you need to go on 11 to your next topic. 12 MR. SMITH: If a man did that would you 13 consider that unsupportive? 14 THE COURT: I don't think that's an 15 appropriate question -- 16 MR. SMITH: I think it's very -- 17 THE COURT: -- for the guardian ad litem, 18 Mr. Smith. 19 MR. SMITH: Given the history of this 20 Court -- 21 THE COURT: Go on to your next topic, 22 Mr. Smith. 00155 1 MR. SMITH: How is putting Liam in 2 unlicensed daycare when he has been cared for at 3 home by his father with the plaintiff stating in 4 writing that he has done an excellent job of it and 5 everybody agreeing that Liam likes to be with his 6 father, how is that supportive? 7 Let me just read you the whole list and you 8 tell me if you can stand there with a straight face 9 and tell me if you actually think any of these 10 actions are supportive or whether they indicate that 11 she is very unsupportive. 12 Calling his father a sick man right in 13 front of our son. Encouraging our son to associate 14 with her illegal lover while at the same time 15 asking -- 16 THE COURT: I don't think those are 17 appropriate questions for this guardian at litem, 18 Mr. Smith. Do you have any other questions -- final 19 questions -- 20 MR. SMITH: No. It's very -- the law 21 requires you to consider supportive. And I -- 22 THE COURT: Any other final questions you 00156 1 want to ask, Mr. Smith? He has already stated -- 2 MR. SMITH: Do you think when the mother 3 instructs our son not to hug his father that that is 4 not being not supportive? 5 MR. FAHY: I'm unaware of any fact 6 situation where the mother has directed the son not 7 to hug you. 8 MR. SMITH: You are unaware of the motions 9 I filed in this case with the audio reporting of the 10 mother saying it. So it's not my word. I provided 11 you with an audio recording of the mother saying, 12 No, you can't hug him, or something to that effect. 13 MR. FAHY: Well, the audio recordings that 14 I'm aware of you first deposited with me and then 15 without my permission took them from my office and I 16 was unable to complete listening to those. 17 THE COURT: Any other questions, Mr. Smith? 18 Let's finish this up. I think -- 19 MR. SMITH: You're telling me that you 20 don't have that in your possession? Even though I 21 didn't take it from you? And that it's available as 22 an attachment to a motion I filed and it's available 00157 1 on the website that you can download and listen to? 2 Isn't it true that any evidence that shows 3 she's unsupportive and I'm supportive you just skip 4 right over and you jump to any little thing you can 5 to try to say I'm unsupportive and she's supportive? 6 MR. FAHY: Well, thank you for answering -- 7 asking that question -- 8 MR. SMITH: Nobody in their right mind -- 9 THE COURT: Let him finish the response, 10 Mr. Smith. 11 MR. SMITH: -- would come up with that 12 conclusion. 13 THE COURT: Mr. Smith, you asked him a 14 question. Let him answer the question. 15 MR. FAHY: Your question suggests I have a 16 bias in favor of either the mother or -- a woman as 17 opposed to a man. That's not true -- 18 MR. SMITH: Objection, Your Honor. 19 MR. FAHY: I would say the mother has -- 20 MR. SMITH: He's supposed -- as a witness 21 he's supposed to answer my question. 22 THE COURT: Mr. Smith, Mr. Smith, he's 00158 1 answering your question. Let him -- give him an 2 opportunity to finish his answer. 3 MR. FAHY: I've been impressed over the two 4 or three years I've been involved in this case 5 with -- in the face of very difficult circumstances, 6 the mother's efforts to try to keep you and your 7 son -- 8 MR. SMITH: Objection. He has already made 9 this statement. 10 MR. FAHY: -- functioning as -- as father 11 and child. 12 MR. SMITH: You've got to be kidding. 13 MR. FAHY: And I have not seen anything 14 like it. 15 MR. SMITH: You're right. I've never asked 16 the Court to cut off contact between her and my son. 17 I don't play that game. 18 THE COURT: All right. I'm going to 19 terminate the questioning at this time. 20 Ms. Vardy, do you have any questions? 21 MS. VARDY: I just have one question. 22 Mr. Fahy, do you have any concerns about the mental 00159 1 health of Mr. Smith? 2 MR. FAHY: Well, I'm not a mental-health 3 professional, although -- 4 MR. SMITH: That's good. So I object to 5 any further answer. 6 MR. FAHY: I do -- 7 THE COURT: Overrule. 8 MR. FAHY: I do have to deal with people 9 who are mentally ill on a regular basis. I'm not in 10 a position to make any sort of diagnosis certainly, 11 but yes, I am concerned with -- with Mr. Smith's 12 mental health. 13 THE COURT: All right. Any other 14 questions, Ms. Vardy? 15 MS. VARDY: No, Your Honor. 16 THE COURT: Thank you, sir -- 17 MR. SMITH: I would like to make a proffer 18 for the Appeal's Court -- 19 THE COURT: You're free to go. 20 MR. SMITH: -- that if I had been allowed 21 to question Mr. Fahy -- 22 THE COURT: Mr. Smith, have a seat. 00160 1 MR. SMITH: No. I would like to make a 2 proffer. I'm allowed to make a proffer. 3 THE COURT: Have a seat, Mr. Smith. 4 MR. SMITH: Would you like me to do it 5 seated? 6 THE COURT: Have a seat. 7 MR. SMITH: Well, I would still like to 8 make my proffer. 9 THE COURT: Ma'am, you -- 10 MR. SMITH: I should have been allowed 11 to -- 12 THE COURT: Mr. Smith -- 13 MR. SMITH: -- ask Mr. Fahy how he feels 14 about -- 15 THE COURT: -- you can't keep talking, 16 Mr. Smith. 17 MR. SMITH: I'm allowed to make a proffer. 18 You're supposed to -- 19 THE COURT: I'll give you an opportunity to 20 make all the proffer you'd like to make at the 21 appropriate time. 22 MR. SMITH: Will you remind me as to which 00161 1 proffers I wish to make? 2 THE COURT: I will be glad to give you an 3 opportunity to make a proffer at the proper time. 4 MR. SMITH: No. Will you remind me as to 5 which particular proffer I want to make? As 6 somebody with ADD -- 7 THE COURT: Mr. Smith -- 8 MR. SMITH: -- I'm likely to forget -- 9 THE COURT: -- you have to stop talking. 10 MR. SMITH: -- and you're legally required 11 to make accommodations. 12 THE COURT: If you continue to talk I'll 13 remove you from the courtroom, Mr. Smith. Now, you 14 have to stop talking while the Court talks. 15 We have counsel here who has -- are you 16 here on behalf of a witness, ma'am? Do you want to 17 come forward. 18 MS. REWARI: Your Honor, I represent the 19 Fairfax County School Board and Roger Vanderhye. 20 Your Honor, we filed a motion on Thursday on behalf 21 of Mr. Vanderhye to quash the witness subpoena for 22 him to appear today. 00162 1 THE COURT: What is Mr. Vanderhye's 2 position? 3 MS. REWARI: Mr. Vanderhye is principal at 4 Spring Hill Elementary School. 5 THE COURT: Okay. 6 MS. REWARI: Mr. Smith had subpoenaed 7 Mr. Vanderhye as well as two teachers from Spring 8 Hill Elementary. The two teachers are here today. 9 They are prepared to testify. 10 But we have moved to quash on behalf of 11 Mr. Vanderhye. This is a large elementary school 12 with 850 students, 86 staff. It would be aqueously 13 disruptive for Mr. Vanderhye to be there today. And 14 I believe this matter is scheduled for two days to 15 come here for that. 16 As we stated in our papers, he does not 17 know the student. He was involved in this case 18 tangentially because Mr. Smith has had a criminal 19 trespass conviction in Fairfax resulting from an 20 incident in -- in -- at Spring Hill Elementary last 21 fall. Mr. Vanderhye testified in a criminal case 22 and Mr. Smith was convicted. 00163 1 We previously filed a motion to quash on 2 behalf of Mr. Vanderhye back in February. We were 3 before Your Honor and at that time Your Honor 4 quashed that subpoena. And we would submit nothing 5 has changed since that time that would make -- 6 THE COURT: Has there been a new subpoena 7 issued for him? 8 MS. REWARI: Yes, there has. 9 THE COURT: I see. Okay. So this is a 10 second subpoena? 11 MS. REWARI: Yes. And the subpoena was to 12 appear today. It's attached. I have an additional 13 copy in my motion if you would like it. 14 THE COURT: Okay. Ms. Vardy, you want to 15 add anything on behalf of the plaintiff? 16 MR. REWARI: Your Honor, if I would just 17 say one other thing. The only other thing that has 18 changed since that time is that Mr. Smith recently 19 filed a lawsuit against Mr. Vanderhye personally in 20 Pulaski County Circuit Court. 21 He has sued him on a number of theories and 22 we submit that if Mr. Vanderhye is here -- is being 00164 1 called for any purpose it's likely to obtain 2 testimony for that case. There's nothing that he 3 could add to this discussion. So we would ask that 4 it be quashed as to him. 5 THE COURT: Okay. Thank you. 6 Ms. Vardy, would you like to add anything? 7 MR. VARDY: Your Honor, I do not see 8 anything that Mr. Vanderhye would add to the divorce 9 case. So I have no -- 10 THE COURT: Mr. Smith, do you want to be 11 heard on the motion to quash? 12 MR. SMITH: Yes, sir. I have submitted 13 a -- 14 THE COURT: Mr. Smith, let me ask you to 15 stand if you're going to address the Court. 16 MR. SMITH: Yes, sir. I have submitted a 17 written reply, and it should be noted that the 18 plaintiff herself had subpoenaed Mr. Vanderhye to 19 appear at the first scheduled divorce trial and that 20 he didn't object to it being overly burdensome. In 21 fact, he showed up ready to testify. 22 So apparently they thought he knew 00165 1 something about the case that was relevant and 2 subpoenaed him and he was willing to show up until 3 he felt that it would help my case rather than his. 4 And certainly there is the trespassing 5 issue. But that's not what I subpoenaed him for. 6 I'm going to have plenty of fun with that in the 7 other case. But he is aware of my son. And per the 8 e-mail that I obtained, he has been corresponding 9 with members of his staff about the behavior 10 problems of my son and he can testify about that. 11 And that is clearly relevant. 12 And he can also testify about -- about 13 worrying about the details of the trespassing, the 14 actions of the plaintiff here and instructing him 15 not to allow me to see my son at school, which is 16 contrary to state law. 17 And it certainly shows she is not being 18 supportive of my relationship of him. And I think 19 it's important that we get that testimony. We won't 20 go over the details of trespassing. That's not 21 relevant here. 22 THE COURT: And you have two witnesses who 00166 1 are teachers of the child here as well? 2 MR. SMITH: Yes. 3 THE COURT: Are they his immediate teachers 4 or do you know what their relationship is to Liam? 5 MR. SMITH: All I know is they sent the 6 e-mail about the behavior problems. 7 THE COURT: Okay. All right. And do you 8 believe they would be better qualified having dealt 9 with Liam on a daily basis than the principal would 10 to testify as to the issues for the Court today? 11 MR. SMITH: Not for all of the issues, no. 12 In terms of the mother's interaction with saying -- 13 saying, Don't let him see his father at school, that 14 Mr. Vanderhye is the one to talk to. 15 THE COURT: Well, in fact, is there not a 16 court order that there's no provisions for 17 visitation at this time, correct? 18 MR. SMITH: That's not visitation and you 19 should be well aware of it. Per state law, unless 20 the court order specifically says, Mr. Smith is not 21 allowed to go to the school, regardless of any 22 visitation or custody arrangements. 00167 1 THE COURT: Okay. I understand your 2 position. 3 I'm going to grant the motion to quash and 4 I'll allow the principal not to be called to testify 5 as a witness. You my notify the other two witnesses 6 that I'm going to get to them as soon as we take a 7 ten-minute break so they can get back to their 8 schools. 9 MR. REWARI: Thank you, Your Honor. We 10 would appreciate that. 11 THE COURT: Thank you. We're going to take 12 a ten-minute recess and we'll come back. And let me 13 take these papers, if I could. 14 MR. SMITH: And Judge, I would like an 15 objection listed to your ruling. 16 THE COURT: Your objection is noted, sir. 17 MS. VARDY: Your Honor, you had ordered us 18 to have Liam here. He has been sitting here in the 19 courthouse. Is it possible that we could resolve 20 the issues? We are not going to call Liam. I don't 21 know if you -- 22 THE COURT: Did you want to call Liam, 00168 1 Mr. Smith, as a witness in your case? 2 MR. SMITH: I would like to call him and 3 have him look at some things, but he wouldn't 4 understand the concept of testifying. That would be 5 inappropriate to make him ask those things. 6 THE COURT: You want him to be released, 7 then? 8 MR. SMITH: No. I would like to see my son 9 and I think it would be important to ask him about 10 activities he would like to do with me. 11 THE COURT: All right. Is the sole reason 12 that you're asking him to stay today is to have 13 visitation with him or to call him as a witness? 14 MR. SMITH: To call him as a witness. 15 THE COURT: Okay. We'll take that up at 16 the appropriate time. Let me go ahead and address 17 the two witnesses, the teachers who are here. 18 MS. VARDY: Yes, I understand. So we 19 should have Liam wait? 20 THE COURT: I think he needs to wait. 21 We'll proceed and give the parties an opportunity to 22 call all the witnesses they want to call. 00169 1 MS. VARDY: Okay. Thank you. 2 THE COURT: All right. We'll take a 3 ten-minute recess. 4 (A recess was taken.) 5 THE COURT: All right. Let's call the 6 witnesses who are the teachers in the case so they 7 can be released. 8 Who would you like to call first? I don't 9 know who summonsed them, Ms. Vardy. 10 MS. VARDY: Mr. Smith. 11 THE COURT: Mr. Smith. Who would you like 12 to call first, Mr. Smith? 13 MR. SMITH: Give me just a moment. Which 14 two teachers do we have here? 15 THE COURT: Ma'am, do you know the name of 16 the teachers who are present? 17 MS. REWARI: Ms. Richards and Ms. Romeo. 18 THE COURT: Richards and Romeo. Which one 19 would you like, Mr. Smith? 20 MR. SMITH: Romeo would be fine. 21 THE COURT: All right. Ms. Romeo. Ask her 22 to come in. 00170 1 Whereupon -- 2 DESIREE ROMEO, 3 a witness, called for examination, having been first 4 duly sworn, was examined and testified as follows: 5 THE COURT: Thank you. You can have a 6 seat. I'll ask you for the record to state your 7 full name and spell your last name, if you would, 8 please. 9 THE WITNESS: Desiree Romeo, R-O-M-E-O. 10 THE COURT: Thank you. All right. 11 Mr. Smith, your witness. 12 MR. SMITH: Should I stand for this? 13 THE COURT: Yes, if you would. You can use 14 the electron if you like. 15 MR. SMITH: All right. 16 DIRECT EXAMINATION 17 BY MR. SMITH: 18 Q. Are you Liam's current teacher? 19 A. Yes. 20 Q. All right. Have you observed Liam having 21 behavior problems and attacking other children in 22 school? 00171 1 A. Yes. 2 Q. Can you provide some details about that. 3 How often it happens. 4 A. Well, it's not a regular basis, but it 5 happens maybe every three weeks or so. 6 Q. Okay. Would you have sent e-mail on 7 October 12th, 2005, that Liam hit seven different 8 children that day? 9 THE COURT: I'm sorry. Is that an e-mail 10 from her to someone? 11 MR. SMITH: Yeah. That's what I'm asking. 12 THE COURT: Who did it go to? 13 MR. SMITH: Wesley, Anna; Goode, Carol; 14 Vanderhye, Roger. One reason I wanted him and -- 15 THE COURT: Do you know who Ms. Goode, 16 Carol is, ma'am? 17 THE WITNESS: Yes, sir. 18 THE COURT: Who is that? 19 THE WITNESS: She is -- I'm not exactly 20 sure what her title is, but she is a director of 21 special ed of our cluster, I believe, in some 22 capacity like that. 00172 1 THE COURT: What grade is Liam in? 2 THE WITNESS: Second. 3 THE COURT: He's in the second. That's the 4 grade you teach? 5 THE WITNESS: Yes, sir. 6 THE COURT: All right. Go ahead, 7 Mr. Smith. 8 BY MR. SMITH: 9 Q. And you also sent a copy of that to 10 Mr. Vanderhye; is that correct? 11 A. Honestly, I don't recall whether I sent 12 something on that particular date or not. 13 THE COURT: You want to offer the document, 14 Mr. Smith? You want to show it to her and see if 15 she can identify it? 16 MR. SMITH: Yeah. If I could have it back 17 at least for questioning. 18 THE COURT: What's that? 19 MR. SMITH: Yes. I'll need it back. 20 THE COURT: You want to show it to her and 21 see if she can identify -- it might help her rather 22 than guess about her e-mails. 00173 1 MR. SMITH: Just right there. 2 THE COURT: Do you recognize that, ma'am? 3 THE WITNESS: Yes. 4 THE COURT: That's an e-mail. Do you have 5 a date on there? Is that a date on that particular 6 e-mail? 7 THE WITNESS: Wednesday, October 12th, 8 2005. 9 THE COURT: Okay. Thank you. 10 BY MR. SMITH: 11 Q. And in this e-mail you said that -- 12 THE COURT: Do you want to offer that 13 e-mail, Mr. Smith? 14 MR. SMITH: Yeah, but I'll need it while 15 I'm doing the questioning. I would like to offer 16 this as evidence, though. 17 THE COURT: Do you have any objection -- 18 let's go ahead and mark it -- ask the clerk to mark 19 it, if you will. 20 Any objection to the e-mail, Ms. Vardy? 21 MS. VARDY: No, Your Honor. 22 THE COURT: Okay. Let's go ahead and mark 00174 1 it. It's the next letter on behalf of the 2 defendant. You want to give that to the bailiff so 3 she can mark that? 4 Is it more than one on there you want to 5 offer or just the one? 6 MR. SMITH: Well, just the whole thing. 7 I'm going to have the other teacher polled about the 8 other one. 9 THE COURT: Okay. Does this particular 10 witness have any other e-mails in the group? 11 MR. SMITH: Yes. 12 THE COURT: Okay. Why don't we do it -- 13 mark them all at the same time. 14 MR. SMITH: Oh, you're going to mark each 15 individual e-mail, not the whole document? 16 THE COURT: Well, let's see -- I don't know 17 if Ms. Vardy has any objections to the other e-mails 18 at all. 19 MS. VARDY: Your Honor -- 20 THE COURT: Let's see. We have 21 October 12th, 2005, from Ms. Romeo. That's the one. 22 MR. SMITH: I'm going to use Ms. Vardy's 00175 1 copy here. She was kind enough to let me use it. 2 THE COURT: Okay. Then you have -- let's 3 see. It looks like one from September 29th. 4 You want to go through these, ma'am, and 5 just identify that these are the e-mails you sent 6 out. It looks like one was September 28th as well. 7 You just want to look at those three and make sure 8 those are the three you sent out. 9 If there's no objection we can mark them as 10 a single exhibit. If there's no objection to it. 11 And is the other teacher here who wrote the 12 other one; do we know? I think there are three 13 listed all together. 14 MR. SMITH: Yeah. I don't think she's the 15 one that wrote the e-mail. She was his previous 16 teacher. 17 THE COURT: Okay. So the ones associated 18 with this witness, we can perhaps introduce those 19 and mark those as a single exhibit, then, the next 20 letter on behalf of the defendant. 21 Are those all yours, ma'am? 22 THE WITNESS: Yes. 00176 1 THE COURT: Were there three, something 2 like that, that you sent out all together, I think? 3 THE WITNESS: I believe there was three 4 there. 5 THE COURT: Okay. We'll mark those. What 6 letter is it? 7 THE CLERK: C. 8 THE COURT: Marked as Exhibit C for the 9 record. 10 BY MR. SMITH: 11 Q. All right. Now, you stated, To protect the 12 other children, that we're going to have to keep 13 Liam out of the classroom as much as possible until 14 he can use more self-control; is that correct? 15 A. Well, I didn't read the whole thing. I 16 don't have a really long memory. 17 THE COURT: You can use this if you'd like. 18 Mr. Smith, you want to keep that one and 19 we'll give the witness this one. 20 MR. SMITH: Okay. 21 THE COURT: So she can have it in front of 22 her. If there's no objection, the exhibit does 00177 1 speak for itself and it has been introduced. 2 MR. SMITH: Oh, okay. So I don't need to 3 ask that? 4 THE COURT: No. 5 BY MR. SMITH: 6 Q. So you did think it was serious enough to 7 keep him out of the classroom because he was hurting 8 the other kids? 9 A. Yes. 10 Q. Okay. I'd also like to ask you about 11 e-mails that my wife sent to you which are a couple 12 pages farther down on October 5th. 13 THE COURT: You're probably going to have 14 to give her a date so she can find it. 15 BY MR. SMITH: 16 Q. Well, from the front, anyways, it's 5. 17 A. Could you give me the date. 18 Q. October 5th. It says, Speech -- kind of 19 looks like this. 20 A. Is it addressed to Ms. Miller? 21 Q. It's to -- yeah, that's the first name on 22 the list. You're also one of the recipients. 00178 1 A. Oh, okay. 2 Q. I wanted to ask if you had received this 3 e-mail from my wife and if you agree that there was 4 more interest or more incidents of violence this 5 year as opposed to the previous year. 6 A. Are you referring to 2006 as opposed to 7 2005, or the school year? 8 Q. I'm not sure how she would have described 9 that, but I guess I don't really care about calendar 10 year, just whether or not his incidents of behavior 11 had been increasing at this point. She states that 12 the concern about it had been increased and I just 13 want to find out if he has had more incidents of 14 violence at school than he had previously. 15 A. I think if I had to compare I would say 16 that the violence continues. I wouldn't say that 17 it's any worse because to me violence is violence. 18 No matter whether it's a pinch or a hit, it's still 19 violence. And while he hasn't hit anyone in recent 20 memory, he has pinched. 21 Q. Okay. And would you say that his violence, 22 hitting and pinching other students, has hurt his 00179 1 performance in school? 2 A. I couldn't really say yes or no to that. I 3 don't -- I don't think I'm an expert enough to 4 determine. 5 Q. All right. Has it interfered with him 6 socially at school? 7 A. I think that there is -- some children have 8 been a little afraid of him because of that and 9 maybe -- and I'm assuming they're standing clear, 10 but they've never discussed it with me. 11 Q. Has it been a greater burden for your 12 staff? Do you have to find someone to keep an eye 13 on him? 14 A. Well, I think you'd have to ask them if 15 it's a burden to them. But I haven't had to ask 16 anyone because he has an IEP and that's all a matter 17 of a protocol. 18 Q. Okay. I wanted to ask you about the last 19 page. Very last page where you mention that Liam 20 doesn't give any warning before his violence; is 21 that correct? 22 A. That's correct. 00180 1 Q. So it's -- with no obvious indication that 2 he's going to do anything, it's just a sudden thing, 3 right? 4 A. Yes, sir. 5 MR. SMITH: All right. Thank you. That's 6 all the questions I have for you. 7 THE COURT: Ms. Vardy, any questions of 8 this witness? 9 MS. VARDY: Just a few, Your Honor. 10 CROSS-EXAMINATION 11 BY MS. VARDY: 12 Q. Ms. Romeo, are you the regular second-grade 13 teacher or the special ed teacher? 14 A. I'm his general ed teacher. 15 Q. General ed teacher, okay. 16 Have you ever contacted Ms. Smith about 17 this problem? 18 A. Yes, ma'am. 19 Q. And has she been cooperative? 20 A. Yes. 21 Q. Okay. Have you any -- has she tried to 22 work with you to resolve this behavior problem? 00181 1 A. Each and every time, yes. 2 Q. Okay. Is this -- how would you describe -- 3 I know you've said hitting is hitting and violence 4 is violence, but is this an impulse behavior or is 5 it a deliberate sort of act? Can you tell? 6 A. In my opinion it's impulsive. I don't know 7 how much more you want me to say beyond that. 8 Q. Is that unusual for children with Down 9 Syndrome? 10 A. Honestly, Liam is the first child I've had 11 in the class with Downs, so I couldn't compare him 12 to anyone else. 13 MS. VARDY: Thank you very much for your 14 time. 15 MR. SMITH: Can I ask a follow-up question? 16 THE COURT: You get rebuttal, if you like. 17 REDIRECT EXAMINATION 18 BY MR. SMITH: 19 Q. You mentioned that Ms. Smith is helpful in 20 discussing about and try to work for ways to 21 eliminate the problem? 22 A. (Nodding head.) 00182 1 Q. In the course of that did she mention her 2 problems in controlling her anger and her outburst 3 and hitting people? 4 A. No, sir. 5 Q. She didn't mention that she had been 6 setting that type of example for him at home? 7 MS. VARDY: Your Honor, I'm going to object 8 to this. 9 THE COURT: I'll let her answer the 10 question if she can. 11 THE WITNESS: No, sir. She never mentioned 12 anything like that. 13 BY MR. SMITH: 14 Q. Are you aware of any of the staff 15 discussing her example as a contributing factor? 16 A. No, sir. 17 Q. And would you be aware of Mr. Vanderhye 18 being upset at my suggesting that that could be a 19 potential area that needed to be worked on? 20 A. I'm not sure I understand your question. 21 Q. Well, I suggested to Mr. Vanderhye and I'm 22 just curious if whether or not you heard that 00183 1 suggestion that perhaps a better example at home 2 would help. 3 A. No. Never heard anything like that. 4 MR. SMITH: Okay. Thank you. 5 THE COURT: Thank you, ma'am, for your 6 testimony. You're free to go. Thank you very much 7 for coming in today. 8 (Witness excused.) 9 THE COURT: Next witness on behalf of the 10 defendant? 11 MR. SMITH: Ms. Richards. 12 THE COURT: Ms. Richards. Ma'am you want 13 to come up to the witness stand, if you will, 14 please, over here. Before you sit down we're going 15 to ask you to raise your right hand and the clerk 16 will place you under oath and then you may be 17 seated. 18 Whereupon -- 19 CHRISTINE RICHARDS, 20 a witness, called for examination, having been first 21 duly sworn, was examined and testified as follows: 22 THE COURT: You can have a seat, and as you 00184 1 do that I'm going to ask you to state your name for 2 the record, if you will, and just spell your last 3 name for the record. 4 THE WITNESS: Christine Richards, 5 R-I-C-H-A-R-D-S. 6 THE COURT: Thank you. 7 Your witness, Mr. Smith. 8 DIRECT EXAMINATION 9 BY MR. SMITH: 10 Q. Ms. Richards, you were Liam's teacher last 11 year? 12 A. That's true. 13 Q. Did you have problems with violence, with 14 Liam hitting and pinching students last year? 15 A. At some points. 16 Q. How frequent was that? 17 A. I can't say. 18 Q. Did it need the involvement of the 19 principal or vice principal to help with that? 20 A. Sometimes the counselor. Mr. Vanderhye was 21 made aware of the situations, but they mainly 22 occurred on the playground. 00185 1 Q. On the playground. 2 What about, say, hitting seven children in 3 one day; would he have done something like that back 4 then? 5 A. I don't recall that many involved. 6 Q. So it's possible the amount of incidents 7 has increased since he was in your class? 8 A. I can't be certain. 9 Q. All right. Do you remember an IEP meeting 10 where that behavior was discussed or a 11 parent-teacher conference? 12 A. Not a parent-teacher conference. 13 Q. What about an IEP meeting? 14 A. I don't recall. 15 Q. Any meeting with me present? 16 A. You were present at one meeting that I 17 attended and the only thing we discussed was potty 18 training because you arrived 15 minutes after the 19 meeting started and we only had 25 minutes for the 20 parent conference. 21 Q. And you don't recall discussing the 22 violence? 00186 1 A. I don't recall. 2 Q. Okay. You don't recall. How about June of 3 last year when you had your class party? 4 A. Uh-huh. 5 Q. And I attended. Was Liam happy to see me? 6 A. Yes. 7 Q. And did I cause any type of disturbance? 8 A. I don't recall. I was busy with the 9 children. When you arrived we were eating lunch 10 and -- 11 Q. So I didn't distract attention from you in 12 any way? 13 A. Well, there was many, many, many adults in 14 our classroom. 15 Q. Yeah. 16 A. And I don't recall. 17 Q. So you didn't notice me much? 18 A. When you came in you were followed by the 19 principal and the counselor. That's all I 20 remember -- 21 Q. Okay. 22 A. -- in the classroom. 00187 1 Q. Now, have you ever been advised by 2 Mr. Vanderhye or Ms. Smith that I was not to have 3 contact with Liam? 4 A. After Christmas, I believe in January, an 5 incident occurred and Mr. Vanderhye came after he 6 received, I think, a letter saying that you were to 7 go to the office and sign in if you came to the 8 school. 9 Q. Yes. A letter that says I needed to sign 10 in to the office. Anything about contact? 11 A. I don't remember. 12 Q. Being allowed to attend? 13 A. I don't remember. 14 Q. Did you not at the trespassing trial state 15 under oath that Mr. Vanderhye instructed that I was 16 not to have contact with Liam? 17 A. I remember that he said that you -- I mean, 18 something about that you were to sign in at the 19 office. 20 MR. SMITH: Okay. Thank you. 21 THE COURT: Ms. Vardy, you wish -- 22 MS. VARDY: I have no questions, Your 00188 1 Honor. 2 THE COURT: Thank you for coming in today. 3 You're free to go. 4 (Witness excused.) 5 THE COURT: All right. We'll go back to 6 the plaintiff's witnesses. Any witnesses on behalf 7 of the plaintiff other than the plaintiff? 8 MS. VARDY: Your Honor, we do have one 9 witness, but Liam is waiting out there. Could we do 10 Liam? 11 THE COURT: You want to do Liam now? Sure. 12 MS. VARDY: Yes, Your Honor. 13 THE COURT: Ask him to step in. 14 (Pause in the proceedings.) 15 THE COURT: Hi, Liam. You want go have a 16 seat up there? Go have a seat up in that chair, 17 okay. How are you doing today? 18 LIAM SMITH: Fine. 19 THE COURT: Good? What's your name? 20 LIAM SMITH: Liam. 21 THE COURT: Are you Liam? 22 LIAM SMITH: Uh-huh. 00189 1 THE COURT: Okay. All right. Liam, do you 2 know what it means to tell the truth? 3 LIAM SMITH: Uh-huh. 4 THE COURT: Okay. What happens to you if 5 you don't tell the truth? 6 LIAM SMITH: Well, my daddy -- and my mom 7 and daddy says -- 8 THE COURT: Okay. Let's see if you have 9 any questions. Ms. Vardy, do you have any questions 10 of Liam? 11 LIAM SMITH: My mommy says I will see my 12 daddy, but the Court didn't say it. 13 THE COURT: Okay. 14 MS. VARDY: I have no questions, Your 15 Honor. 16 THE COURT: Mr. Smith, did you want to ask 17 Liam any questions? 18 LIAM SMITH: No. My mom said I could go 19 play with Daddy, but the Court didn't say it. 20 Daddy, come here. 21 MR. SMITH: Judge, is it okay if I go over 22 there? 00190 1 THE COURT: No. Just stand over there. 2 DIRECT EXAMINATION 3 BY MR. SMITH: 4 Q. Hi, little guy. 5 A. Hi, Daddy. 6 Q. How are you? 7 A. Good. 8 Q. That's nice. 9 A. Come here. 10 THE COURT: You can go see him. 11 BY MR. SMITH: 12 Q. Look at you. 13 A. I want to be with you. 14 Q. Maybe they will let you. 15 A. What's wrong, Daddy? 16 Q. I'm just happy to see you. 17 THE COURT: Would you like to ask him 18 anything, Mr. Smith? 19 BY MR. SMITH: 20 Q. Would you like to go camping with me? 21 A. Yeah. 22 Q. Does that sound like fun? 00191 1 A. Yeah. 2 Q. You want to go see some cows? 3 A. Yeah. 4 Q. How about chickens? 5 A. Yeah. 6 Q. Pigs? 7 A. Yeah. 8 Q. You want to go jump on a trampoline? 9 A. Yeah. 10 Q. How about cousins? 11 A. Oh, yeah. 12 Q. Would you like that? 13 A. Yeah. 14 Q. Okay. 15 A. Thank you. 16 Q. Well, maybe the Court will let us go. 17 A. Okay. 18 Q. It was good to see you, little guy. 19 LIAM SMITH: Thank you, Court. 20 THE COURT: Okay. Thank you, Liam. You 21 may step down and go back outside if you like. 22 (Witness excused.) 00192 1 THE COURT: You have a good day now, okay. 2 'Bye-'bye. 3 Are there any witnesses you would like to 4 call on behalf of the plaintiff? 5 MS. VARDY: Yes, Your Honor. 6 THE COURT: You want to do it after lunch 7 and get started at 2:00? We'll take our lunch 8 recess at this time and we'll reconvene at 2:00. 9 Let me ask you, how many witnesses do you 10 have? 11 MS. VARDY: My client and one other 12 witness. 13 THE COURT: Okay. We'll take that other 14 witness and come back to your client last. 15 How about you Mr. Smith, how many other 16 witnesses do you have, sir? 17 MR. SMITH: My wife and Ms. Vardy. 18 MS. VARDY: Your Honor, I have filed a 19 motion to quash. 20 THE COURT: Okay. We'll hear you on that. 21 I'll entertain that after lunch. 22 All right. We'll take an hour recess at 00193 1 this time, then, and I'll ask the parties to come 2 back at 2:00. We'll get started at 2:00. Just tell 3 your other witness, if you'll just let them know 4 we'll call them first. 5 MS. VARDY: Yes, Your Honor. 6 THE COURT: Okay. And then we'll come to 7 the parties and hear any argument on Ms. Vardy's 8 subpoena for her, okay. All right. We'll take an 9 hour recess. 10 MS. VARDY: A subpoena for me. To quash 11 the subpoena for me, not my client. 12 THE COURT: Right. I understand that. 13 We'll take up any motions at that time. 14 (Whereupon, a lunch recess was taken.) 15 16 17 18 19 20 21 22 00194 1 AFTERNOON SESSION 2 (1:59 p.m.) 3 MS. VARDY: Your Honor, there is another 4 witness that -- 5 THE COURT: What's that? 6 MS. VARDY: There is another witness that 7 Mr. Smith has subpoenaed that I was unaware of who 8 had been waiting all day as well. Mr. McNulty. 9 THE COURT: Okay. Did you want to call 10 him, Mr. Smith, or not? 11 MR. SMITH: Yes. 12 THE COURT: And you have one extra? 13 MS. VARDY: I have one witness, yes. 14 THE COURT: Okay. We'll go ahead and take 15 your witness. Is that a long witness or short 16 witness? 17 MS. VARDY: It should be short. 18 THE COURT: Short. We'll take your witness 19 first and then we'll come back and take the 20 defendant's witness. 21 MR. SMITH: Judge, I would like to object 22 to her witness. It wasn't on her interrogatories 00195 1 and they knew about the case. And she did not send 2 me the subpoena for it until yesterday. 3 THE COURT: All right. You want to proffer 4 what she's going to testify to? 5 MS. VARDY: She's merely going to testify 6 to Ms. Smith's intention to have the separation be 7 permanent, and she was -- 8 THE COURT: She's the ore tenus 9 corroborating; is that what she is? 10 MS. VARDY: Yes. And she was on the list, 11 the updated amended list. 12 THE COURT: I'll overrule the objection. 13 She's an ore tenus witness. 14 All right. Ma'am, let me ask you to stand 15 and raise your right hand and the clerk will place 16 you under oath, and you may have a seat. 17 Whereupon -- 18 HEIDI THORPE, 19 a witness, called for examination, having been first 20 duly sworn, was examined and testified as follows: 21 THE COURT: You may have a seat. Let me 22 ask you to state your full name for the record and 00196 1 just spell your last name, if you will, for the 2 record. 3 THE WITNESS: Okay. Heidi Thorpe, 4 T-H-O-R-P-E. 5 THE COURT: Thank you, Ms. Thorpe. 6 Ms. Vardy, your witness. 7 DIRECT EXAMINATION 8 BY MS. VARDY: 9 Q. Ms. Thorpe, thank you for coming. Can you 10 tell me how you know the defendant and plaintiff, 11 the parties. 12 A. I know Cheri -- actually, I know both 13 because both our sons have Down Syndrome. And 14 that's how we met. 15 Q. Okay. And are you aware of the fact that 16 they are married? 17 A. Yes. 18 Q. And that they have one child, Liam Raleigh 19 Smith? 20 A. Yes. 21 Q. Did there come a time when you and 22 Ms. Smith visited each other in your homes? 00197 1 A. Yes. She invited me and my children to her 2 house around Christmas of 2002 to make cookies. 3 Q. And was Mr. Smith available at that time? 4 A. No. 5 Q. Were you aware -- did you become aware of 6 where Mr. Smith was? 7 A. Ms. Smith told me he had moved back with 8 his parents. 9 Q. Okay. Did Ms. Smith indicate to you that 10 she expected -- or intended for the separation to be 11 permanent? 12 A. I assumed that. 13 Q. Okay. Was -- 14 A. Based on what our conversation was, yes. 15 Q. Okay. Did you later visit Ms. Smith's 16 apartment? 17 A. Yes. Both apartments, yes. 18 Q. Both apartments. Did you see any sign in 19 Ms. Smith's apartment that Mr. Smith was living 20 there or any of his things there? 21 A. No. 22 Q. Okay. Were you inside Mr. Smith's 00198 1 apartment? 2 A. No. 3 Q. Okay. But did you have any indication that 4 Ms. Smith spent any time in Mr. Smith's apartment -- 5 A. No. 6 Q. -- more than just to pick up Liam? 7 A. No. I was just at the front door, but I 8 saw no sign of that. 9 MS. VARDY: Okay. Thank you. That's all. 10 THE COURT: All right. Mr. Smith, any 11 questions you have? 12 MR. SMITH: Yes, sir. 13 CROSS-EXAMINATION 14 BY MR. SMITH: 15 Q. Now, your son also has Down Syndrome? 16 A. Yes. 17 Q. And does he participate in the Challenger 18 baseball? 19 A. He did in the past. 20 Q. When Liam was doing it as well? 21 A. Yes. 22 Q. And are you aware that I would take him to 00199 1 the games there? 2 A. Yes. 3 Q. And did Liam look like he was getting along 4 with me? 5 A. Yes. 6 Q. Play catch with him and your son? 7 A. Uh-huh. Yes. 8 Q. All right. Now, you mentioned that my wife 9 claimed that I moved back with my parents. 10 A. That's what I recall, yes. 11 Q. All right. Are you aware that my father is 12 dead? 13 A. No. 14 Q. So parents would not be realistic, would 15 it? 16 A. No. 17 Q. All right. Are you aware that my wife has 18 been committing adultery? 19 A. No. 20 Q. Have you ever met or herd of Igor Bakhir? 21 A. Yes, I have. 22 Q. When did you first hear of him? 00200 1 A. I'm not really sure. Probably sometime 2 within the last few months. 3 Q. Just within the last few months? 4 A. Yes. I -- and I met him last summer, 5 probably. 6 Q. You met him? 7 A. Yes. He came to -- actually, it would have 8 been at a horse-riding session, I believe. 9 Q. You only heard of him in the last couple of 10 months, but you met him -- 11 A. No. I said within the last few months is 12 when I first heard of him. I can't put a specific 13 date on it. I cannot remember. 14 Q. All right. But you met him last summer at 15 horse riding? 16 A. Yes. It probably would have been in the 17 fall because that's when Michael, my son, started 18 taking horse riding. 19 Q. That at, like, Rainbow Therapeutic Riding? 20 A. Out at Phoenix Riding. 21 Q. Now, were you also present at your son's 22 birthday party that Liam attended? 00201 1 A. Yes. 2 Q. Who brought Liam to that party? 3 A. You did. 4 Q. Did Liam enjoy that party? 5 A. Yes. 6 Q. Did he look like he got along well with me? 7 A. Yes. 8 Q. And he did enjoy the party. It was very 9 nice. 10 Now, do you think a woman should be dating 11 while she is still married? 12 THE COURT: That's not an appropriate 13 question of this witness, Mr. Smith. 14 MR. SMITH: One of the few pieces of e-mail 15 my wife submitted, it was between the witness and my 16 wife discussing that topic. 17 THE COURT: What this witness thinks is 18 appropriate between a man and a woman is irrelevant 19 to this Court. 20 MR. SMITH: All right. 21 THE COURT: Before you step down, ma'am, 22 let me ask you some questions. When did you first 00202 1 meet Ms. Smith or Mr. Smith; do you remember? 2 THE WITNESS: I first met Ms. Smith during 3 the summer of -- it was July or August of 2002. 4 THE COURT: Okay. And you have children 5 with the same condition. Is that how you met, at 6 some sort of meeting or class? 7 THE WITNESS: Yes. We started a parent 8 support group in Brooklyn County and we both 9 attended at the same time. 10 THE COURT: Okay. And she has alleged in 11 her bill of complaint that they were married on 12 November 23, 1988, in Utah. Did -- she always held 13 herself out to be married, I take it. 14 THE WITNESS: Yes. 15 THE COURT: You didn't attend that wedding, 16 didn't know her back then, correct? 17 THE WITNESS: No, sir. 18 THE COURT: Okay. And do you know how many 19 children they have? 20 THE WITNESS: Just Liam, the one. 21 THE COURT: Okay. They don't have children 22 other than Liam, correct? 00203 1 THE WITNESS: No, sir. 2 THE COURT: Liam is eight years old now? 3 THE WITNESS: Yes. 4 THE COURT: Okay. All right. And you say 5 you met with them -- met with her in December, 6 around Christmas of 2002. 7 THE WITNESS: Yes. 8 THE COURT: At a function then, and -- 9 THE WITNESS: It was just, she invited my 10 children and myself to her house. 11 THE COURT: Okay. It was your 12 understanding based on that conversation the parties 13 had separated as man and wife? 14 THE WITNESS: Yes. 15 THE COURT: And to your knowledge have they 16 remained separate and apart without cohabitation, 17 without interruption since that time? 18 THE WITNESS: Yes, sir. 19 THE COURT: Do you remember the date of 20 that party at all? Was it before Christmas or 21 after. 22 THE WITNESS: It was before Christmas. 00204 1 THE COURT: Before Christmas. December, 2 you don't remember the date. 3 THE WITNESS: It was probably one to two 4 weeks before Christmas. 5 THE COURT: Okay. And you have -- have 6 visited Ms. Smith in her apartment, I guess, at both 7 apartments; is that what you said? 8 THE WITNESS: Yes. 9 THE COURT: She had an apartment, I guess, 10 on Manassas Mill Road in Manassas, Virginia, at one 11 time. You visited her there? 12 THE WITNESS: Yes. 13 THE COURT: And have you visited her at her 14 current residence? 15 THE WITNESS: Yes. 16 MR. SMITH: Judge, I would object to 17 relevance. Nobody is arguing we were not separated 18 after she had an apartment. 19 THE COURT: It goes to the grounds of 20 divorce, Mr. Smith. 21 In other words, at the Lincoln Circle 22 address in McLean you visited her there. 00205 1 THE WITNESS: Yes. 2 THE COURT: Okay. In your visit to those 3 apartments have you ever seen any evidence that they 4 have cohabited again as man and wife? 5 THE WITNESS: No, sir. 6 THE COURT: To the best of your knowledge 7 she has domiciled and a resident of the Commonwealth 8 of Virginia and has been for more than six months 9 prior to filing this suit, which was filed June 10 11th, 2003? 11 THE WITNESS: Yes. 12 THE COURT: She does -- to your knowledge 13 she doesn't claim any other state as her state of 14 residence? 15 THE WITNESS: No. 16 THE COURT: To your knowledge is there any 17 hope or possibility of reconciliation between these 18 parties? 19 THE WITNESS: No, sir. 20 THE COURT: All right. Do you know whether 21 or not they have a written property settlement 22 agreement that purports to resolve their property 00206 1 and support issues? 2 THE WITNESS: Could you repeat that. 3 THE COURT: Do they have a property 4 settlement agreement; do you know? 5 THE WITNESS: I don't know. 6 THE COURT: All right. Ms. Vardy, any 7 other questions? 8 MS. VARDY: Just one question, Your Honor. 9 REDIRECT EXAMINATION 10 BY MS. VARDY: 11 Q. Mr. Smith alluded to his presence at the 12 Challenger baseball. Have you ever observed 13 Mr. Smith denigrating Ms. Smith in front of other 14 parents? 15 A. Yes, I did. 16 Q. Would you tell the Court what you observed. 17 A. I was just standing there and the manager 18 was there and Mr. Smith came over, and I don't 19 remember the exact words, but alluded to the fact 20 that his wife was cheating on him to the manager, 21 who was very uncomfortable. 22 Q. Was this in a loud voice or was this 00207 1 just -- 2 A. It was just in a normal tone. 3 MS. VARDY: Okay. Thank you very much. 4 THE COURT: Thank you, ma'am. You may step 5 down. You're free to go. Thank you for coming in. 6 (Witness excused.) 7 MR. SMITH: Don't I get a chance to ask 8 follow-up questions? 9 THE COURT: No, sir. She gets rebuttal. 10 Any other witness, Ms. Vardy, on behalf of 11 the plaintiff other than the plaintiff? 12 MS. VARDY: No, Your Honor. 13 MR. SMITH: Judge, I must object. It's her 14 witness and I don't get to follow up to her 15 questions she asks? 16 THE COURT: No, sir. 17 Any other questions -- any other witnesses, 18 rather, Mr. Smith, you'd like to call other than 19 yourself? 20 MR. SMITH: Mr. Nutter. 21 THE COURT: Okay. Mr. Nutter. 22 MS. VARDY: It's Mr. McNulty. 00208 1 THE COURT: McNulty. 2 Thank you for coming here today. Let me 3 ask you to step up to the witness stand, if you 4 will, please. Raise your right hand and the clerk 5 will place you under oath and you may be seated. 6 Whereupon -- 7 FRANK McNULTY, 8 a witness, called for examination, having been first 9 duly sworn, was examined and testified as follows: 10 THE COURT: Thank you, sir. Let me ask you 11 to have a seat and state your name for the record, 12 and I would ask you to spell your last name. 13 THE WITNESS: Sure. My name is Frank 14 McNulty. The last name is spelled M-C-N-U-L-T-Y. 15 THE COURT: Thank you, sir. 16 Your witness, Mr. Smith. 17 MR. SMITH: Thank you. 18 DIRECT EXAMINATION 19 BY MR. SMITH: 20 Q. Mr. McNulty, is it correct that you work 21 for Child Protective Services? 22 A. Yes. For Fairfax County. 00209 1 Q. And you handled the case related to my son 2 Liam? 3 A. Yes. 4 Q. And can you state the nature of that 5 complaint. 6 A. The department received a referral 7 regarding Liam. The possibility of physical abuse 8 or neglect. 9 THE COURT: Do we have a time frame on 10 that? 11 THE WITNESS: That would have been 12 September of 1994 -- I mean, I'm sorry, 2004. 13 THE COURT: 2004, okay. 14 BY MR. SMITH: 15 Q. Okay. 16 A. What was reported to us was I guess there 17 was a concern that he had reported that Mr. Smith 18 had grabbed him by his hair and pushed him down onto 19 this bed. And also hit him with a stick. And 20 probably two or three months prior to that he had 21 come back from a visitation and had a bruise on his 22 back. 00210 1 Q. Can you tell me what date that was alleged 2 to have occurred. 3 A. I don't know the specific date. I know it 4 was mid-September, though, when we received the 5 referral. 6 Q. Was there a specific date mentioned in the 7 complaint? 8 A. Not that I recall. 9 Q. Did you happen to bring -- brought a copy 10 of the complaint with you? 11 A. No. 12 Q. Would that record still exist? 13 A. It should, yes. 14 Q. When you investigated the complaint did you 15 determine that it couldn't have been me because I 16 did not have access to the child at the time the 17 compliant specified? 18 A. Well, actually, the case was given to me as 19 what we call a family assessment. So it wasn't an 20 investigation. There's a difference between the 21 two. As part of the assessment I witnessed no 22 injuries on Liam when I saw him. And he didn't give 00211 1 me any indication he had been harmed by either 2 parent. 3 Q. Were you presented with any evidence of the 4 location of Liam in contact with me during the 5 periods specified in the complaint? 6 A. You my have told me time periods that you 7 had him, but I don't know. I don't recall that. 8 Q. You don't recall me providing you a copy of 9 the court order? 10 A. You probably did. I'm sure you did. That 11 would also be in the case file if they were provided 12 to me. 13 Q. To demonstrate that I didn't have access to 14 him then? 15 A. That, I don't recall. I don't recall the 16 dates. 17 Q. Did you or your department give any 18 consideration to the mother's history of 19 uncontrollable rage and domestic violence? 20 A. That wasn't an issue as part of the 21 complaint. 22 Q. So when your department investigates 00212 1 physical abuse of a child and you have a parent that 2 has a history of rage and violence you don't look 3 into that? 4 A. Sure. We'll look into that. 5 Q. So what was the result of your looking into 6 it? 7 A. I had no evidence to say that Ms. Smith was 8 having an issue in that regard. Other than the 9 information you provided me. 10 Q. Yes. And was the information I provided 11 not conclusive given that it included a recording of 12 Ms. Smith admitting to having uncontrollable rage 13 and her therapist making a statement to the same 14 effect? 15 A. If I remember correctly the statements were 16 very brief. And I never received a copy of those so 17 I don't recall exactly what they stated. The 18 statements that I recall you letting me listen to, 19 again, they were very brief. I don't remember her 20 saying her rage was out of control, but that could 21 be a possibility. I don't recall that. 22 Q. Do you recall being provided with a letter 00213 1 written by Ms. Smith admitting to acts of bodily 2 harm and domestic violence? 3 A. I don't recall a letter, no. 4 Q. Or an e-mail? 5 A. I don't think I ever received an e-mail 6 from Ms. Smith. 7 Q. How many complaints have been filed about 8 my son? 9 A. I believe there was two -- there was three, 10 a total of three referrals and only one was accepted 11 as a case, which is the one I was investigating. 12 Q. Can you tell me who filed the complaints? 13 A. I can't tell you that. Legally I'm not 14 allowed to do that. 15 MR. SMITH: Judge, could you ask him to 16 state who provided the referrals. 17 THE COURT: No, sir. 18 MR. SMITH: So you're saying you're not 19 interested in who filed the complaint? 20 THE COURT: I don't think this witness is 21 permitted by law to disclose that information, sir. 22 MR. SMITH: He is if you instruct him. 00214 1 THE COURT: I'm not going to instruct him 2 to disclose it. I don't think the law requires 3 that. 4 MR. SMITH: I would object to that. I 5 think it's important to -- 6 THE COURT: Your objection is noted, 7 Mr. Smith. 8 MR. SMITH: -- the support of relationship 9 if it goes to show that the mother was the one who 10 filed the compliant or somebody related to -- 11 THE COURT: From my understanding he said 12 that's the only one he acted on, the one he 13 investigated. The other two they didn't even act on 14 so there was no finding in those cases anyway, I 15 would assume. 16 THE WITNESS: Correct. 17 MR. SMITH: It's still relevant if my wife 18 made three attempts to cut off contact -- 19 THE COURT: It's not relevant to me, sir. 20 BY MR. SMITH: 21 Q. Can you state whether or not it was my 22 wife -- not say who, but was it my wife who filed 00215 1 the complaint? 2 A. I can't give you any identifying 3 information regarding who made the call to us. 4 Q. Can you tell me a time frame of the 5 previous two referrals. Did they come before the 6 one that was investigated or after? 7 A. I believe one came after the September one. 8 Q. Do you recall the nature of either of 9 those? 10 A. The other referral was apparently you had 11 gotten picked up by the police department because 12 you had taken pictures to the -- to get developed 13 and the police department made a referral. 14 Q. Oh, yeah. I remember that. That was a lot 15 of fun. 16 THE COURT: Any questions, Mr. Smith? 17 BY MR. SMITH: 18 Q. Can you state the nature of the pictures. 19 A. From what you showed me they were pictures 20 of your son as an infant. I believe he was in a 21 bookcase, placed in a microwave. And I know there 22 were others, but I don't recall the others. 00216 1 Q. Why was that one not investigated? 2 A. It wasn't accepted on our hotline. I can't 3 give that answer. You'd have to talk to the hotline 4 staff. 5 Q. Would they have records of both incidents 6 that weren't investigated? 7 A. There should be. The referral would be 8 there. 9 MR. SMITH: Thank you. 10 THE COURT: Ms. Vardy, any other questions? 11 MS. VARDY: Just one, Your Honor. 12 CROSS-EXAMINATION 13 BY MS. VARDY: 14 Q. Mr. McNulty, generally speaking, what -- 15 what is the policy of child support enforcement in 16 terms of if you were to be doing a presentation to 17 people? Would you advise them if they have a 18 suspicion if there was a problem -- 19 MR. SMITH: I have to object. What does 20 child support have to do with -- 21 MS. VARDY: I'm sorry, child abuse. 22 THE COURT: Do you want to rephrase your 00217 1 question. 2 MS. VARDY: Yes. 3 BY MS. VARDY: 4 Q. Child Protective Services. Okay. Do you 5 ever give sort of informational sessions with 6 parents or others who -- teachers' concerns -- 7 A. Sure. I'll do training out in the 8 community. 9 Q. Okay. And what do you advise people -- 10 when do you advise them to make calls to the CPS? 11 A. Whenever there's a suspicion that they 12 think there might be child abuse or neglect, they 13 can always call the hotline. 14 Q. Okay. And would you consider a child 15 stating that -- what you had said earlier, I 16 believe, that Liam stated that his dad pulled his 17 hair and pushed him on his bed, hit him with a 18 stick; is that it? 19 A. Yes. That was what was reported. 20 Q. Okay. And it was reported that the child 21 stated that? 22 A. That was reported -- yes. That is what was 00218 1 reported. 2 Q. Do you advise in your training that people 3 should take these things seriously? 4 A. Yes. 5 MS. VARDY: Okay. Thank you for your time. 6 MR. SMITH: Can I have a follow-up? 7 THE COURT: Yes, sir 8 REDIRECT EXAMINATION 9 BY MR. SMITH: 10 Q. You say your staff is trained to take that 11 seriously, which is good. Can you explain to me, 12 then, why I got no follow-up, no return phone call 13 when I left a message at your office stating that 14 Liam had made a similar complaint about the mother, 15 that I did have it recorded and I did have photos of 16 minor injury to him? Why did your department not 17 follow up on that? 18 A. Did you call our hotline? 19 Q. I called your office and left a message, 20 figuring you were familiar with the case. 21 A. Okay. That, I don't know. I don't recall 22 ever getting a message. If you left one for the 00219 1 hotline, I don't know what they discussed with you. 2 Q. Isn't it true that fathers in divorce cases 3 are hesitant to call your hotline because often 4 that's held against them? 5 THE COURT: He can't answer that question, 6 Mr. Smith. 7 BY MR. SMITH: 8 Q. Can you tell me specifically from your 9 department -- I've seen the statistics -- who is 10 more likely to commit child abuse, the mother or the 11 father? 12 THE COURT: I don't think that's relevant 13 in this case, Mr. Smith. 14 MR. SMITH: I think it is. 15 THE COURT: No, it's not. The question is 16 whether either of these parties have committed abuse 17 against this child. The best interest of the child 18 is of primary concern of this Court, not what may be 19 statistically the findings by surveys or anything 20 else. 21 BY MR. SMITH: 22 Q. Did your department look into the 00220 1 possibility that Igor Bakhir had committed the 2 abuse? 3 A. No. It wasn't part of the referral. 4 Q. When they claim that my son said it was me, 5 did he use the name Wes or Dad or Daddy? 6 A. He actual didn't tell me anything. 7 Q. But in the complaint somebody alleged that 8 he said that, correct? 9 A. I believe he said his father. I think 10 that's what was in the complaint -- 11 Q. His father? 12 A. -- on the complaint. Could say Dad, but I 13 don't know specifically what it says. 14 MR. SMITH: Okay. Thank you. 15 THE COURT: Thank you, sir, for you coming 16 in. I'm sorry you had to wait so long. You're free 17 to go. Thank you very much. 18 (Witness excused.) 19 THE COURT: That concludes all the 20 witnesses other than the parties. So we'll go to 21 the plaintiff then. 22 Ms. Smith, you want to come up. I'll 00221 1 remind you that you're still under oath. 2 MR. SMITH: Judge, that is not all the 3 witnesses other than the parties. I have asked to 4 call Ms. Vardy. 5 THE COURT: All right. You can have a 6 seat, Ms. Smith. We'll take up that issue if you'd 7 like. But that's your witness, actually, so this is 8 Ms. Smith's witness. 9 Ms. Smith, you want to come up to the 10 stand. I'll let you go ahead and proceed with your 11 testimony and we'll address any witnesses you want 12 to call later, Mr. Smith. 13 Let me state to the parties, I've asked you 14 questions under oath so I'll remind you that you've 15 already testified to that. You need not repeat that 16 same information. Obviously your attorney can ask 17 you anything she'd like to with regards to those 18 questions. 19 But Mr. Smith, the same is true for you 20 when you testify to the evidence in the case so you 21 need not repeat yourself on that if you don't want 22 to. I'll leave that up to you. 00222 1 MR. SMITH: Okay. 2 THE COURT: Okay. All right. Ms. Vardy. 3 Whereupon -- 4 CHERI SMITH, 5 a witness, called for examination, having been 6 previously duly sworn, was examined and testified as 7 follows: 8 DIRECT EXAMINATION 9 BY MS. VARDY: 10 Q. Ms. Smith, you have given testimony and 11 heard my questioning of other witnesses as to your 12 date of your separation. Can you explain to the 13 Court or tell the Court what occurred on July 16th 14 into the 17th of 2002 -- I'm sorry. Your Honor, 15 strike that. September. I apologize. 16 September 16th and 17th. 17 A. Wes had been pressuring me to move out of 18 the house. We -- it had been -- he had been fairly 19 intense about it. And I left the home suddenly. He 20 was confronting me again about moving out so I left 21 the home with Liam. I believe it was the evening of 22 the 16th. 00223 1 MR. SMITH: Judge, I have to object. I 2 filed a motion to prevent questions on these type of 3 topics. We have already had a hearing in the 4 protective order over these topics and her claim to 5 abuse. The Court has ruled against her. She did 6 not appeal it and it has actually been expunged and 7 it's inappropriate for her to bring this up again 8 already. 9 THE COURT: This -- the proper issue for 10 this Court is the ground for divorce, Mr. Smith. So 11 I'll overrule your objection. 12 MR. SMITH: And I also object again. The 13 Court has already ruled it didn't happen. 14 THE COURT: All right, sir. I understand 15 your position. I've ruled on your objection. Let's 16 proceed. 17 THE WITNESS: I left and went to a 18 neighbor's house. On the following -- that night I 19 returned -- called the police and returned to get 20 some of my things and some of Liam's things. 21 Mr. Smith had taken my clothes and put them in 22 garbage bags and threw them out into the driveway. 00224 1 The following day I did go to the court and obtain a 2 preliminary protective order. 3 MS. VARDY: Your Honor, I'd like to have 4 this -- if I may approach the witness and have her 5 identify this. It is A1 in the book under tab 1. 6 THE COURT: All right. 7 MR. SMITH: Judge, I'm going to have to 8 object again. We've already covered this in a 9 previous trial. 10 THE COURT: I think grounds of separation 11 are relevant to this Court, Mr. Smith. So you may 12 have had a prior hearing on these issues, but this 13 Court has the issue for grounds of divorce before it 14 and I think it is relevant for those issues. I'll 15 overrule your objection. 16 MR. SMITH: And I'll object to your ruling 17 as the Court ruled it didn't happen. That her 18 claims were false. Therefore they don't apply to 19 grounds for divorce because it didn't happen. 20 THE COURT: All right, sir. 21 You may proceed, Ms. Vardy. 22 MS. VARDY: Thank you, Your Honor. 00225 1 BY MS. VARDY: 2 Q. Is this a copy of the protective order that 3 you received on September 17th, 2002? 4 A. Yes, it is. 5 Q. Okay. And also a copy of the affidavit 6 that you signed? 7 A. Yes. 8 Q. Okay. Thank you. 9 MS. VARDY: Your Honor, we'd like to -- 10 THE COURT: Any objection to Exhibit 1? 11 MR. SMITH: Yes. 12 THE COURT: Designated as 1 for purposes of 13 the notebook. 14 MR. SMITH: I do have an objection. 15 THE COURT: This will be 4:1, then. Any 16 objection to 4:1, Mr. Smith? 17 MR. SMITH: I do object to it. It has 18 already been ruled as false by the J&DR Court, and 19 in fact, your court itself has expunged the 20 protective order. Therefore both courts have 21 admitted that it's false. It should have no bearing 22 on this case other than to show that she's 00226 1 uncooperative in my relationship with my son. 2 THE COURT: All right, sir, this is a 3 preliminary protective order based on family abuse 4 it's shown in Exhibit 4:1. The Court is going to 5 overrule the objection and allow that to be 6 admitted. 7 (Plaintiff's Exhibit Number 4:1 was 8 received into evidence.) 9 MS. VARDY: Your Honor, I think if I may 10 ask the Court, Mr. Smith seems to equate the fact 11 that a Court does not grant an order upon a hearing 12 as therefore determining it's false rather than 13 either -- 14 MR. SMITH: I object. Ms. Vardy can't know 15 how I interpret that. 16 THE COURT: You need to leave the 17 interpretation out. There is a copy of the order 18 dated August 4, 2003. The Court will take judicial 19 notice of the court record as well. So that's why I 20 admitted 1 -- 4:1. 21 MS. VARDY: Thank you. 22 BY MS. VARDY: 00227 1 Q. Upon receipt of the preliminary protective 2 order, did you return to your home? 3 A. I did. 4 Q. Okay. And then there was a hearing for a 5 permanent protective order? 6 A. That's correct. 7 Q. Okay. Was that order granted? 8 A. It was not. 9 Q. Okay. At that point did Mr. -- excuse me. 10 Let me back up. When you received the preliminary 11 protective order was Mr. Smith ordered out of the 12 marital home? 13 A. He was. 14 Q. Okay. When the permanent protective order 15 was denied, did he return into the marital home? 16 A. He did. 17 Q. Okay. Can you explain to the Court what 18 type of arrangement was determined at that time as 19 far as your living arrangements. 20 A. Mr. Smith was adamant that we not be -- 21 both be in the home at the same time. But would not 22 move out and would not come to some agreement that 00228 1 would allow me financial freedom. 2 Basically if I moved out I would lose the 3 house and I hadn't yet come to terms with that. So 4 I felt like I needed to stay, too. But he was 5 adamant that we not both be in the house at the same 6 time, so we made an arrangement that we would 7 alternate in the home. Liam would stay there and 8 that Mr. Smith and I would alternate nights staying 9 there. 10 Q. And did Mr. Smith respect this agreement? 11 A. Yes, he did. 12 Q. Okay. Did you then -- did there come a 13 time then that there was a custody hearing in the 14 Juvenile and Domestic Relations Court? 15 A. Yes. 16 Q. And that -- 17 A. It was in October. 18 Q. And what occurred at that time? 19 A. If I remember correctly I was granted legal 20 custody and physical custody and Wes was granted 21 visitation. 22 MS. VARDY: Your Honor, we would like to 00229 1 submit that order as well, which is A2, the third 2 page after tab 1. 3 THE COURT: 2 is a pendente lite order so I 4 don't think that's a Juvenile Court order. Was it a 5 Juvenile Court order that you're referring to now? 6 MS. VARDY: Yes. 7 THE COURT: That's not 2. 8 MS. VARDY: Are you in the first tab? 9 THE COURT: I'm in tab 2. 10 MS. VARDY: No. No. It's under tab 1. 11 It's A2, I'm sorry. 12 THE COURT: Okay. All right. So you have 13 the affidavit and you have the order. That's the 14 one I was making reference to earlier. 15 MS. VARDY: Yes, Your Honor. 16 THE COURT: That's the order with regard to 17 permanent -- with regards to custody? 18 MS. VARDY: Yes, Your Honor. 19 THE COURT: Okay. 20 MR. SMITH: I'll have to object if that's 21 allowed to her statement. The order's fine, but the 22 order makes no mention of visitation. 00230 1 THE COURT: All she has done is enter -- 2 offered the order at this point. If you have no 3 objection to that I'll admit that. 4 (Plaintiff's Exhibit Number 4:2 was 5 received into evidence.) 6 MS. VARDY: Your Honor, we stand corrected. 7 It did not address visitation. 8 THE COURT: Okay. 9 BY MS. VARDY: 10 Q. This order was entered at the end of 11 October. Did you both return to the marital home at 12 that time? 13 THE COURT: I'm sorry. I have an order of 14 February 4th, 2003. 15 MS. VARDY: I haven't gotten to that one 16 yet, Your Honor. I'm on 10/23. 17 THE COURT: Is there one before that? 18 MS. VARDY: Yes. 19 THE COURT: All right. Let me make sure 20 I'm on the right page. Same page as they say, okay. 21 Now I see the one you're looking at. You're looking 22 at the Juvenile Court order. It's under 1 as well. 00231 1 October 23, '02, by Judge Robinson. 2 MS. VARDY: Yes. 3 THE COURT: Okay. That's fine. 4 THE WITNESS: I'm sorry. Could you repeat 5 the question. 6 BY MS. VARDY: 7 Q. Yes. When this order was entered what 8 arrangements did you make as far as the marital 9 residence? Who was living in the home? How did you 10 continue? 11 A. I don't remember specifically which order. 12 I know that there was an order that established 13 specific areas of the house for exclusive use and 14 exclusive use of the automobiles. 15 MS. VARDY: Okay. And Your Honor, that -- 16 if I may show my client, that is the order of 17 February 4th. 18 THE COURT: Okay. 19 MR. SMITH: Judge, that -- 20 THE COURT: That's also under tab 4:1. 21 MR. SMITH: My understanding of her 22 question didn't address the time period of this 00232 1 order. 2 MS. VARDY: No. It hasn't yet. 3 THE COURT: All right. 4 MR. SMITH: Weren't you talking about 5 October, and this is a February order. 6 MS. VARDY: That's right. 7 BY MS. VARDY: 8 Q. Okay. In -- from October you have 9 testified already to Judge Potter's question that 10 your husband left the marital home sometime at the 11 beginning of November or end of October. 12 A. It was right around the first of November. 13 Q. Okay. And were the two -- did the two of 14 you cohabitate at any time between the entry of the 15 order on 10/23 and when he left? 16 A. No. 17 Q. Did he tell you why -- where he was going? 18 A. No, he didn't. 19 Q. Did he -- 20 A. He did not tell me that he was going. 21 Q. Excuse me? 22 A. He did not tell me that he was going. 00233 1 Q. Okay. So how did you learn of his absence 2 from the marital residence? 3 A. I don't remember. 4 Q. Okay. Did you have any idea whether he was 5 returning? 6 A. I did not. 7 Q. Okay. All right. At that time did you 8 consider yourself to be separated? 9 A. Yes, I did. 10 Q. Okay. And when Ms. Thorpe visited you in 11 December, did you relay that information to her 12 either through general conversation or specifically 13 mentioning that you were separating? 14 A. I did. I mean, it was -- emotionally I was 15 still coping with the fact that my marriage had 16 failed and relayed to a lot of people actually, you 17 know, that in the course of discussion that it was 18 going to be a permanent thing. 19 MS. VARDY: Okay. Your Honor, if we could 20 I would like to drop down and if I might to A7. 21 Okay. Which -- it's still under tab 1. And if I 22 might show this to my client for her identification. 00234 1 THE COURT: Okay. What are we looking at? 2 MS. VARDY: We are looking at the opening 3 statement of her -- I'm sorry, we're under tab 2. 4 For her Chase Manhattan -- I lied, we're looking at 5 tab 3. 6 THE COURT: Tab 3 is the Chase -- Chevy 7 Chase Bank statement of account. 8 BY MS. VARDY: 9 Q. Would you identify this for the Court. 10 A. This is an opening statement of the bank 11 account that I opened after the preliminary 12 protective order. Actually, right before I filed 13 for the preliminary protective order I stopped at 14 the bank and opened a separate checking account. 15 Q. Okay. From that date, which was 9/17. 16 Yes, September 17th. Did you maintain separate 17 finances from the -- 18 A. Yes, uh-huh. 19 MS. VARDY: Okay. Your Honor, we would 20 like to enter that as further -- 21 THE COURT: Number 3. Any objection to 22 4:3, Mr. Smith? 00235 1 MR. SMITH: The bank record? 2 THE COURT: Yes, sir. The Chevy Case Bank. 3 MR. SMITH: No objection to that. 4 THE COURT: That will be admitted. 5 (Plaintiff's Exhibit Number 4:3 was 6 received into evidence.) 7 BY MS. VARDY: 8 Q. Ms. Smith, were there subsequent court 9 orders which specified which rooms of the house you 10 would have -- you would each have use of? 11 A. Yes. The one that you showed me from 12 February of 2003 showed specific rooms for my 13 exclusive use and other rooms in the house for 14 Mr. Smith's exclusive use. And I believe it also 15 set aside the Saturn SL2 for his use and the Saturn 16 SW2 which we had at the time for my use. 17 Q. And was there a permanent hearing down in 18 the Juvenile and Domestic Relations Court on the 19 issue of the custody? 20 A. Yes, there was. 21 Q. Okay. And can you tell the Court how -- 22 what was the result of that hearing as well. 00236 1 A. I was granted sole legal and physical 2 custody of -- or sole legal and primary physical 3 custody of Liam. 4 MR. SMITH: Judge, I'd like to object that 5 Ms. Vardy is skipping relevant information wherein 6 the middle of the court awarded me joint legal 7 custody and took the child out of the daycare she 8 placed him in and gave him to me for daycare. 9 THE COURT: You will be given an 10 opportunity to present that evidence if you'd like, 11 Mr. Smith. But I think she's allowed to proceed and 12 follow procedure how she wants to follow it in 13 regard to her own witness. So I overrule your 14 objection. 15 MS. VARDY: Thank you, Your Honor. 16 MR. SMITH: Well, I will object then that 17 Ms. Vardy should not attempt to mislead the Court as 18 to the nature of the outcome. 19 THE COURT: All right, sir. I've ruled. 20 Go ahead, Ms. Vardy. 21 BY MS. VARDY: 22 Q. Was there a bill of compliant filed in the 00237 1 Circuit Court shortly after that hearing? 2 A. Yes. 3 Q. Had you at that point moved from the 4 marital home? 5 A. I had. 6 Q. Can you tell the Court what enabled -- what 7 enabled you to move out of the home or what led you 8 to move out of the home at that point? 9 A. Just persistent harassment by Mr. Smith. 10 And I had been hoping to -- Mr. Smith was still not 11 working and would not agree to pick up the mortgage 12 payments. I did not want to lose that equity in the 13 home and that's why I stayed. 14 But at some point I came to the conclusion 15 that it was -- it was more important to be 16 independent and have some peace and have a place of 17 my own where it could be peaceful for me and for 18 Liam. And so I -- I just very suddenly moved out. 19 Q. Okay. Can you describe for the Court, 20 during the time that you cohabited in the same house 21 but in separate areas, did you have meals together? 22 A. No. We typically did not eat together. 00238 1 Although periodically we would be eating at the same 2 time, but we did not eat together. We bought 3 separate food except for Liam. I often would 4 reimburse for Mr. Smith for things that he purchased 5 for Liam. 6 We on one occasion went -- traveled 7 together to a school function where Liam had done a 8 project for the science fair and we traveled to that 9 as a family and back again, but that's the only 10 incident I can think of where we'd done something as 11 a family. 12 Q. Were there other events during that time 13 that you traveled any distance to for Liam's 14 activities? 15 A. There were baseball games that we would 16 both attend. There were IEP meetings that we would 17 both attend. 18 Q. And at that point you each arrived 19 separately? 20 A. To my recollection, yes. 21 Q. Okay. At this point how were the bills for 22 the home being handled? 00239 1 A. I paid the majority of them. There were a 2 few -- I think Wes paid for -- the first few months 3 after the September separation date I believe he 4 paid for our broadband connection because I had 5 opted to use -- set up my own account through a LAN 6 line base provider. The majority -- 7 Q. I'm sorry. You lost me there. A broadband 8 is what type of -- is it an Internet connection? 9 A. It was an Internet connection through a 10 cable company, I think. I think it was through 11 Comcast. And so it was what had provided our 12 Internet connection and Wes did pay that. There 13 were -- the electricity, I paid. I think -- I think 14 Wes paid some of the phone bills. The garbage 15 collection, I paid. 16 MR. SMITH: What time period are we talking 17 of? 18 THE COURT: Ms. Vardy, you want to identify 19 the time period? 20 MS. VARDY: Yes, Your Honor. 21 THE WITNESS: Up through -- through the end 22 of May. I moved out, I believe, June 3rd. So those 00240 1 bills I continued until that time and after that 2 time I didn't pay anymore. 3 THE COURT: June 3rd, 2003. 4 THE WITNESS: Yes, sir. 5 BY MS. VARDY: 6 Q. What about the mortgage on the home? Did 7 you incur further debt because of the mortgage on 8 the home? 9 A. I did. I continued paying on the mortgage 10 until the end of May. 11 Q. Okay. Were you -- how were you able to do 12 that in conjunction with paying your rent? 13 A. Well, while I was in home and didn't have 14 an apartment I continued paying the mortgage. After 15 I moved out I stopped paying the mortgage. 16 In August the -- there was threat of 17 foreclosure and in September the -- I guess the ad 18 litem hearing or the -- for the -- 19 Q. The pendente lite hearing. 20 A. Okay. The pendente lite. And one of the 21 results of that was that I was ordered to make the 22 back payments for the mortgage to bring that current 00241 1 and continue to pay it until we were able to sell 2 the home. In order to do that I took an advance on 3 one of my credit cards. 4 MS. VARDY: Your Honor, I'd first like to 5 enter the order, which is A6, the first thing after 6 tab 2, and it is -- if you look at the last page of 7 the marital residence, both parties are actually 8 ordered to preserve the marital -- 9 THE COURT: What's the date on that? 10 MS. VARDY: It is the second day of October 11 2003. 12 THE COURT: And that's under which one? 13 MS. VARDY: The pendente -- tab 2. 14 THE COURT: Tab 2, okay. The pendente lite 15 order from this Court was entered on October 2, 16 2003. All right. 17 MS. VARDY: 18 Q. Do you recall which credit card you took 19 the advance on? 20 THE COURT: Let me see if Mr. Smith has any 21 objection to that exhibit. And I guess for the 22 record it's 4:4. 00242 1 MR. SMITH: To the court order of -- 2 THE COURT: October 2, 2003. It's a 3 pendente lite order part of the record in this case. 4 MR. SMITH: I object to it. I don't think 5 that was a valid hearing. I don't think it's a 6 valid court order, but it does accurately reflect 7 what's on the court record. 8 THE COURT: Objection will be overruled and 9 that exhibit will be admitted. 10 (Plaintiff's Exhibit Number 4:4 was 11 received into evidence.) 12 BY MS. VARDY: 13 Q. Ms. Smith, do you recall which credit card 14 you took the initial -- 15 A. I want to say it's the First USA credit 16 card. It was -- it was originally in amount of 17 $4,100. 18 MS. VARDY: Your Honor, may I check my 19 notes? They have so many different credit cards, 20 companies were bought by other credit card 21 companies. 22 THE WITNESS: I believe First USA was the 00243 1 one that became Bank One. 2 MS. VARDY: Yes, it is. 3 Your Honor, may I show my client so she can 4 tell me which one? We have so many. 5 THE COURT: Sure. 6 MS. VARDY: Thank you. 7 MR. SMITH: Judge, I'd like to object to 8 her presenting all this financial information. I 9 filed a motion documenting that Loretta 10 intentionally committed fraud in filing financial 11 documents and ask that she be prohibited from 12 presenting any financial information at the trial. 13 And if you would rule on that we could just -- 14 THE COURT: I can't do an equitable 15 distribution, Mr. Smith, if I don't know what the 16 financial status of the parties is. 17 MR. SMITH: Well, you have my records and 18 mine are accurate. 19 THE COURT: Well, I'll let you cross on the 20 records, but I think it's appropriate to proceed. 21 MS. VARDY: Thank you. Okay. It is tab 5 22 and it was First Union, which shows that as of 00244 1 10/7/2003, Ms. Smith took out $4,100. 2 BY MS. VARDY: 3 Q. Is it your testimony that that money was 4 used to pay -- 5 MR. SMITH: Could -- could we get a number 6 of the credit card as we've -- there's been multiple 7 First Unions. 8 MS. VARDY: Okay. It is the one -- 9 THE WITNESS: At least the last four 10 digits. 11 MS. VARDY: -- the last four digits that 12 end in 6196. 13 MR. SMITH: Thank you. 14 THE WITNESS: Yes. It was used solely for 15 the mortgage payments and late fees and 16 miscellaneous fees to bring the loan current. 17 BY MS. VARDY: 18 Q. Okay. Have you continued paying on that 19 loan? 20 A. I did. 21 Q. Okay. And up to the present time you have 22 continued paying on that loan? 00245 1 A. Up until the time the house was sold in 2 December. So I would have made at least two more 3 payments. 4 Q. Okay. And then did you -- did you continue 5 to use the credit card? 6 A. The First Union, no. 7 Q. Okay. Did you continue to pay on it, 8 however? 9 A. I did. 10 MS. VARDY: Okay. And Your Honor, I would 11 like to introduce -- and Mr. Smith, these are the 12 copies of the bill for that First Union bank 13 account. 14 THE COURT: All right. You want to offer 15 Exhibit 5? 16 MS. VARDY: Yes. 17 THE COURT: Any objection to 5? 18 MS. VARDY: Your Honor, it's the whole 19 thing and there's a summary of the amount paid under 20 tab 6 which shows the bills paid for First Union. 21 THE COURT: Any objection to 5? 22 MR. SMITH: I have a question as -- are 00246 1 these all supposed to be the same credit card? 2 Because she said she didn't continue to use it, but 3 then there's more charges on here for a hair salon 4 and stuff. 5 THE COURT: Well, I'll let you cross on the 6 exhibit, but they're being offered as an exhibit at 7 this time, Mr. Smith. Do you have any objection? 8 MR. SMITH: Just page 5? 9 MS. VARDY: No. Actually, all of these 10 pages. 11 THE COURT: Hearing no objection, I'll 12 admit it. 13 (Plaintiff's Exhibit Number 5 was received 14 into evidence.) 15 MR. SMITH: Well, I would have to object 16 because they don't match her testimony. 17 THE COURT: All right. You may proceed, 18 Ms. Vardy. 19 MS. VARDY: Thank you, Your Honor. 20 MR. SMITH: Is it clear on the record my 21 objection that it doesn't match her testimony? 22 THE COURT: No, sir, I don't think it was, 00247 1 but I ruled on it before you made it. So it's too 2 late. 3 MR. SMITH: Well, I would object to your 4 ruling. 5 THE COURT: Your objection came too late. 6 Ms. Vardy, you may proceed. 7 MS. VARDY: Thank you, Your Honor. 8 BY MS. VARDY: 9 Q. Ms. Smith, what other of the marital debts 10 did you continue to pay? 11 A. On my student loan and the credit cards. 12 Q. Okay. And by the student loan you are 13 referring to the Citibank student loan, which is 14 under -- I believe this is tab 13. 15 MS. VARDY: There are two Citibank 16 accounts, Your Honor. 17 BY MS. VARDY: 18 Q. No, this is not the one. That one 19 didn't -- $7,200? 20 A. No. That's a credit card. 21 MS. VARDY: Okay. All right. Your Honor, 22 if I may hold off on that. It appears I do not have 00248 1 that. 2 BY MS. VARDY: 3 Q. Can you explain to the Court what credit 4 cards and how they trace out. 5 MS. VARDY: And for this, Your Honor, I'm 6 going to have to give this to my client to trace out 7 because -- 8 THE COURT: Sure. Let's hand the notebook 9 to her so she can answer the question. 10 MS. VARDY: -- it is confusing to me no 11 matter how many hours I spent. 12 MR. SMITH: I'll have to object to 13 relevancy. We were not separated yet so how we as a 14 married couple spent our money really is not 15 relevant to this. 16 THE COURT: Okay, sir. I'll let you 17 address that on cross. The easiest thing to do is 18 just work our way back to these exhibits and tell us 19 what they are. 20 MR. SMITH: Okay. 21 THE COURT: You want to take your exhibits 22 and pull out Exhibit 2. Exhibit 3, rather. It's a 00249 1 Chevy Chase Bank account. It's in your name. What 2 is this -- what does this show, this statement? 3 THE WITNESS: This is the opening statement 4 from when I established the account. It shows the 5 first deposit on September 18th of $300. 6 THE COURT: That's when you went out -- I 7 think you said your separate finances. And are you 8 offering that for any other reason at this time? 9 THE WITNESS: I don't think so. 10 MS. VARDY: No. 11 THE COURT: 4 is an Ameritrade item. Can 12 you tell me what these are. 13 THE WITNESS: This was in -- Ms. Vardy had 14 brought this up before that it would -- it appeared 15 there were two trading accounts. A Daytech and 16 Ameritrade account. 17 THE COURT: Right. 18 THE WITNESS: Mr. Smith maintained that 19 they actually were the same. 20 MS. VARDY: Your Honor, if Mr. Smith would 21 take a look at it and tell us -- say that -- 22 THE COURT: Okay. So he says the Daytech 00250 1 is the same -- 2 THE WITNESS: Yeah, I think so. 3 THE COURT: You don't have any reason to 4 argue with that? You think it may well be the same 5 account? 6 THE WITNESS: Yeah. 7 THE COURT: Okay. Let me ask you to look 8 at 5, which seems to be a First Union Bank Card 9 services. That's the one I think we were just 10 referring to. 11 THE WITNESS: Okay. This is a credit card 12 that was held jointly by Wes and I and used for 13 joint expenses. When we separated there was no date 14 and there were charges to it. I did use it after we 15 separated. 16 THE COURT: Do you know how much was due on 17 the date of your separation or at that time? Let me 18 ask you this. If you have the exhibit showing the 19 equitable distribution, can you show that to her? 20 MS. VARDY: Yes, Your Honor. 21 THE COURT: The closure statement. 22 MR. SMITH: Excuse me, Judge, what date are 00251 1 we using for the date of separation? 2 THE COURT: Well, I'm just trying to get 3 through the exhibits, Mr. Smith. 4 MR. SMITH: Well, you're asking her what 5 the balance was on the date of separation. You 6 can't do that not knowing what date it is. 7 THE COURT: Well, the testimony at this 8 point has been corroborated that they were separate 9 at least by December and the Court could find that 10 date, but I'll let you present evidence and argue 11 that. I'm not prepared to make that finding at this 12 point until you present your evidence. 13 MR. SMITH: Okay. 14 THE COURT: Dealing with Exhibit 5, can you 15 tell me what that is on your list. Is that 16 reflected on your ED list at all? 17 THE WITNESS: It is. It's listed under 18 Wachovia Bank. Wachovia purchased First Union. 19 THE COURT: That's why I can't find it. 20 THE WITNESS: There was no marital debt on 21 that card. 22 THE COURT: Okay. 00252 1 THE WITNESS: The only thing I'm claiming 2 on that card is half of -- or actually, the full 3 amount paid. 4 THE COURT: Is that down on the last -- 5 next to the last page of you ED sheet? 6 THE WITNESS: It's on page 4 -- 5 of 5, 7 yeah. 8 THE COURT: Okay. That's Wachovia Bank, 9 formally First Union, and joint? 10 THE WITNESS: That's correct. 11 THE COURT: Okay. And that is Exhibit 5. 12 All right. 4:5 we're referring to it as. And your 13 position is that there was no debt on that at the 14 time of your separation? 15 THE WITNESS: Correct. 16 THE COURT: Okay. So the balance shown on 17 that the $4,156 is debt you've incurred since your 18 separation? 19 THE WITNESS: The -- since October of 2003, 20 prior to that there -- there -- actually, let me 21 look at this because one of these cards I used 22 briefly after we separated, but I paid the balance 00253 1 back down. 2 On page -- or on the statement for the -- 3 with the closing date of the -- since October 2003 4 it shows a previous balance of zero. And then it 5 shows the $4,100 cash advance for the purpose of 6 paying the mortgage for the month of July -- June, 7 July and August. 8 THE COURT: That's the $4,156 shown on your 9 ED sheet? 10 THE WITNESS: The $4,156 is the -- yes. 11 THE COURT: Okay. And that was a cash 12 advance to pay the mortgage? 13 THE WITNESS: No. Actually -- no, I'm 14 sorry, there are -- there are some charges after 15 this. About $463, I believe. 16 THE COURT: Well, there's not marital debt 17 due, then, on that. 18 THE WITNESS: No. Just the $4,100 cash 19 advance. 20 MS. VARDY: We're only asking that the 21 $4,100 -- 22 THE COURT: Okay. That's what I'm trying 00254 1 to get to. 2 MS. VARDY: -- be considered marital. I 3 know it's very -- 4 THE COURT: Let me ask you to look at 5 Exhibit 6, and that has a group of different 6 accounts. It looks like a tabulation you made for 7 the purpose of the hearing. 8 MS. VARDY: Yes, Your Honor. That's the 9 summary of -- 10 THE COURT: Are those payments on that 11 particular one. 12 MS. VARDY: -- payments on the First 13 Union -- 14 THE COURT: Joint account. 15 MS. VARDY: Joint account, which became 16 Wachovia. 17 THE COURT: Okay. 18 MR. SMITH: Judge, I do object to the 19 summary. I had -- more correctly, my attorney did 20 submit a discovery request for the documents and 21 Ms. Vardy did not comply fully with that. And I 22 object to her being able to just state what she 00255 1 wants here when she has refused to provide the 2 actual documents in question. 3 THE COURT: All right. Ms. Vardy, you want 4 to respond at all? 5 MS. VARDY: Your Honor, we have -- we 6 provided everything that we had. We were in court 7 here several times on the issue of discovery. I 8 believe Mr. Smith has everything that I have. 9 THE COURT: Okay. Any response to that, 10 Mr. Smith? 11 MR. SMITH: If that was the case, why did 12 they not state that at the hearing rather than just 13 saying they weren't going to comply? That doesn't 14 make any sense at all. 15 THE COURT: So do you have this 16 documentation at all? 17 MR. SMITH: No, I don't have it. That's 18 why I was requesting it from them. I have part -- 19 portions of it, but not the complete list that was 20 requested. 21 THE COURT: Do you know which portions you 22 have and which portions you don't? 00256 1 MR. SMITH: I filed that in the motion with 2 the Court. I could not tell you what it was right 3 away. 4 THE COURT: Okay. Let's go on to 5 Exhibit 7. Exhibit 7 indicates a Capital One. Can 6 you tell me what that is, Ms. Smith. 7 THE WITNESS: This was a joint credit card 8 that we used. I closed it immediately after 9 separating. 10 THE COURT: Okay. Is that shown on your ED 11 sheet at all? The Capital One Mastercard, is that 12 it on page 4? 13 THE WITNESS: Yes. 14 THE COURT: Okay. Or 5 of 5, rather. 15 Okay. So that's Exhibit 4:7. All right. How much 16 of that do you think is marital debt at this time? 17 THE WITNESS: All of the original balance 18 would have been marital debt. 19 THE COURT: And the original balance being 20 the $3,400? 21 THE WITNESS: Yes. 22 THE COURT: Okay. All right. Let me take 00257 1 you to Exhibit 8, and that seems to be a compilation 2 of your payments on the Capital One. Is that what 3 that is? 4 THE WITNESS: Yes. 5 THE COURT: Okay. So that's related to 6 Exhibit 4:7 as well. Exhibit 9 -- 7 MR. SMITH: Again, I'll object on the same 8 grounds previously. 9 THE COURT: Okay. They haven't been 10 offered at this point. I'm just trying to see what 11 they are. 12 First USA on Exhibit 9. Can you tell me 13 which account that is. 14 THE WITNESS: I don't see it listed on the 15 ED -- 16 THE COURT: I see -- if you look page 4 of 17 5 on the bottom. 18 THE WITNESS: Yeah. At the bottom, that's 19 what it is. 20 THE COURT: Is that what it is? 21 THE WITNESS: Uh-huh. 22 THE COURT: Okay. And how much of that 00258 1 debt do you believe is marital debt? Is it the 2 $6,234 or -- 3 THE WITNESS: Yes. 4 THE COURT: Okay. And again, is that 5 Exhibit 4:9? All right. 6 THE WITNESS: And that one actually in 7 April of 2004. I believe this is the one. The 8 remaining balance was transferred to a different 9 credit card. 10 THE COURT: Where did that go; do you know? 11 THE WITNESS: And that is the Citibank 12 credit card. 13 THE COURT: Citibank. 14 THE WITNESS: I'm trying to find which tab 15 that's under. 16 MR. SMITH: Citibank, that's not your 17 educational loan? 18 THE WITNESS: No. That's under -- that's 19 under tab 13. The account number ending in 7200 and 20 I've continued to pay down that card. 21 THE COURT: Okay. That's not shown on your 22 ED list? 00259 1 THE WITNESS: It is not. 2 MS. VARDY: Your Honor, because that was a 3 subsequent to one of -- to the -- 4 THE COURT: She made that transfer to 5 another -- 6 MS. VARDY: She made that transfer of the 7 marital debt -- actually, half of the balance. 8 THE COURT: And so that's Exhibit 13, Citi 9 Platinum Select card; is that the one? 10 MS. VARDY: Yes, Your Honor. 11 THE COURT: Paid for May 13? 12 THE WITNESS: And that balance of $4,068 13 that's listed on page 4, that's actually on the Citi 14 Finance card. 15 THE COURT: Okay. So that's what's shown 16 on Exhibit 4:13? That particular card? 17 THE WITNESS: Yeah. 18 THE COURT: Okay. So it's -- all right. 19 Let's look at Exhibit 10. Is that your payments on 20 the -- 21 THE WITNESS: Yes. 22 THE COURT: -- USA Account? Okay. 00260 1 And then Exhibit 11, what is that? 2 THE WITNESS: This is a Chase Mastercard 3 that I opened and transferred part of the balance 4 from First Union in December of 2004. 5 THE COURT: That's A4:11, and that's part 6 of the First Union? 7 THE WITNESS: Uh-huh. 8 THE COURT: And is that shown on your ED 9 sheet at all? 10 MS. VARDY: The First Union is shown. 11 THE COURT: The First Union, Wesley Smith's 12 name? 13 MS. VARDY: No, Your Honor. 14 THE COURT: First Union joint account? 15 MS. VARDY: Joint account. 16 THE COURT: Okay. So 4:5, that particular 17 exhibit shown on 4:5 was transferred to 4:11. Which 18 is known as a -- what kind of bank is this? What 19 did you say this was? 20 THE WITNESS: It's Chase Manhattan. 21 THE COURT: Chase Manhattan. 22 THE WITNESS: Uh-huh. 00261 1 THE COURT: Okay. And then Exhibit 13 2 shows your payments on that account? 3 THE WITNESS: Uh-huh. 4 THE COURT: Okay. Again, that's not shown 5 separately on your ED sheet. 6 THE WITNESS: No. 7 THE COURT: The First Union, okay. Is 8 there anything left in First Union or is it all 9 Chase Manhattan now? 10 THE WITNESS: There is an amount left on 11 First Union. 12 THE COURT: Okay. And the 4:13. 4:14. 13 THE WITNESS: Let me correct that. There 14 is not. 15 THE COURT: There's not? 16 THE WITNESS: There is not. 17 THE COURT: You're paying it all under the 18 Citi card now? And Citi card payments are shown on 19 4:14, right? Those are your Citi Card payments on 20 that debt? 21 THE WITNESS: Yes. 22 THE COURT: Number 15, tell we what that 00262 1 is. 2 THE WITNESS: I believe that's the summery 3 of payments made and finance -- 4 MS. VARDY: Charges -- 5 THE WITNESS: -- charges that remain on 6 these different -- 7 THE COURT: For those different cards? 8 MS. VARDY: Yes. 9 THE COURT: Okay. 16, can you tell me what 10 that is. 11 THE WITNESS: This is an export from 12 Quicken where I track my income expenses. 13 MR. SMITH: Again, sir, I object to this. 14 I did request the actual electronic file so I could 15 verify myself and they -- 16 THE COURT: Again, it's not offered at this 17 time, Mr. Smith. I'm just trying to determine what 18 it is. We'll come back to it to see if you have any 19 objection to any of these exhibits. 20 MR. SMITH: Yes, sir. 21 THE COURT: Okay. 17. What's 17? 22 THE WITNESS: This is a listing of the 00263 1 mortgage payments and utility payments that I made 2 while Wes and I were separated but living in the 3 same residence. 4 THE COURT: All right. And 18? 4:18? 5 THE WITNESS: This is Wes' personal 6 checking account that he maintained while we were 7 married. 8 THE COURT: Is this marital debt at all 9 that you expect payment on, or no? 10 THE WITNESS: No, there -- there's no debt 11 associated with it. There weren't any significant 12 assets in it. 13 THE COURT: Okay. 19? 14 MS. VARDY: Your Honor, if we could just 15 take a moment -- 16 THE COURT: Okay. 17 MS. VARDY: On the First Union Express for 18 the billing period of 2/21 -- 19 THE COURT: You've got to give me a number. 20 MS. VARDY: Number -- I don't have the 21 book; that's my problem. 22 THE WITNESS: It's C2. 00264 1 THE COURT: What's the number, ma'am? Do 2 you have that, Ms. Smith? 3 THE WITNESS: C2. 4 MS. VARDY: C2. We're under 18. 5 THE COURT: 4:18, okay. 6 MS. VARDY: Tab 18 and we're looking at C7. 7 It shows there that the -- we're not sure what this 8 debit for the Treasurer of Virginia is. 9 THE COURT: Is -- is that -- let's see 10 4:18. Is that his -- that's his -- 11 MS. VARDY: It's his checking -- 12 MR. SMITH: Probably car taxes. 13 MS. VARY: Okay. So we didn't know if it 14 was a -- 15 THE COURT: Okay. 16 MS. VARDY: It was. And also there is on 17 the next page in March of the parties, 2002, I guess 18 it would have been tax refund was deposited into 19 Mr. Smith's account. 20 THE COURT: Okay. 21 MS. VARDY: And the following, the federal 22 of 2002. 00265 1 THE COURT: What number are you on? C7 2 still? 3 MS. VARDY: No. I'm on C8 and C9. 4 THE COURT: C8. 5 MS. VARDY: Under, Deposits and other 6 credits. The $2,854 was the federal income tax 7 return on the parties' joint tax return. 8 MR. SMITH: Which was done by the 9 plaintiff. Another reason, we were not separated 10 yet. 11 THE COURT: All right, sir. 12 Let's go to 19. Ms. Vardy, what is 19? 13 THE WITNESS: Could I back up for just a 14 minute? Also -- also under 18 on C2 there's a 15 deposit on the 27th of September of $7,285. I had 16 surmised that that was from our stock trading 17 account from the liquidation of that. 18 MR. SMITH: Which page? 19 THE COURT: Let me ask you to look at 4:19, 20 if you will, and Ms. Vardy, you want to tell us, is 21 this a pendente lite order form entered by Judge 22 Ferris on September 23, '04; is that correct? 00266 1 MS. VARDY: Yes, Your Honor. That has 2 nothing to do right now with this matter. It has to 3 do with a later matter. 4 THE COURT: All right. And then you have 5 20. 6 MS. VARDY: And that's the same thing. The 7 rest of these do not have to with the divorce 8 issues. 9 THE COURT: Okay. Five orders, 21. And 10 you're not offering 21 at this time? 11 MS. VARDY: No. 12 THE COURT: 22 you're not offering at this 13 time? 14 MS. VARDY: No. I'm not offering it either 15 at this time. 16 THE COURT: Okay. Let's go back and look 17 at the exhibits, then, Mr. Smith, and address, I 18 think, 4:2. 4:2 is the court order that was entered 19 by this Court on October 2nd, '03, and the Court has 20 admitted that document. You want to look at 4:3 -- 21 I'm sorry. 4:3 is the Chevy Chase bank. Do you 22 have any objection to 4:3 coming in, Mr. Smith? 00267 1 MR. SMITH: It's incomplete. It's just two 2 pages of it. 3 THE COURT: Well, what has been shown and 4 presented, do you have any objection to that? 5 MR. SMITH: No, sir. 6 THE COURT: Okay. I think we probably went 7 through that. 8 4:4 is the Ameritrade A. And my 9 understanding is you both agree at this point that 10 that and the Daytech stock is the same -- same 11 issue. Do you have any objection to 4:4, then? 12 MR. SMITH: No, sir. 13 THE COURT: And 4:5, the First Union 14 account. Any objection to 4:5? 15 MR. SMITH: The only objection I'm going to 16 have to most of these is that I was not provided 17 with complete copies per discovery request except 18 for the summaries which I really do object not being 19 provided the electronic copy as requested. 20 THE COURT: Okay. You didn't get these 21 copies? From -- let's take them one at a time. 22 4:5? You have not received these copies before? 00268 1 MR. SMITH: I received a lot of them, but I 2 did not receive complete copies. 3 THE COURT: Do you know which ones were 4 missing at all? 5 MR. SMITH: I have filed that with the 6 Court. I could not tell you that today. 7 THE WITNESS: There are a few that I don't 8 have either. There's selected months for First 9 Union. 10 THE COURT: Okay. Well, I'm going to admit 11 it since we're not sure which one you're going to 12 object to. 13 (Plaintiff's Exhibit Number 4:5 was 14 received into evidence.) 15 THE COURT: 4:6 is the listing of the 16 payments. Do you have any objection to the listing 17 of the payment? 18 MR. SMITH: I do object. In the other 19 summary that Ms. Vardy prepared have been grossly 20 inaccurate. I have documented in my motion and I 21 think it is unwise to trust Ms. Vardy to create an 22 accurate summary. 00269 1 THE COURT: Do you know of any inaccuracy 2 in 4:6? 3 MR. SMITH: I have never seen it before so 4 I have never -- I have not had a chance to take a 5 look at it. 6 THE COURT: I assume, Ms. Vardy, this was 7 prepared for the purpose of litigation? 8 MS. VARDY: Yes, Your Honor. I believe it 9 was -- we're -- 10 THE COURT: Ms. Smith, you can testify, 11 however, that in terms of that account the total 12 over the years the total figure would show $1,936.73 13 that you've paid on that account? 14 THE WITNESS: Yes. 15 THE COURT: All right. With the objection, 16 then, that you have not received those, I sustain 17 the objection to 4:6. 18 4:7, any objection to the Capital One 19 information? 20 MR. SMITH: Other than what I already 21 noted. 22 THE COURT: Okay. That's the Capital One 00270 1 Mastercard, I believe, 4:7. Without objection that 2 will be admitted. 3 (Plaintiff's Exhibit Number 4:7 was 4 received into evidence.) 5 THE COURT: 8, any objection for that 6 listing? 7 MR. SMITH: Same objection to the summary. 8 I was not provided this previously and the track 9 record is that her summaries are grossly inaccurate. 10 THE COURT: All right. Ms. Smith, how much 11 do you show is the total payment that you've made on 12 the payments there for that account? 13 THE WITNESS: $2,777. 14 THE COURT: All right. I'll sustain the 15 objection to the 4:6. Excuse me, 4:8. 16 4:9 the First USA account. Any objection 17 to 4:9? 18 MR. SMITH: Other than the previously noted 19 ones, no. 20 THE COURT: Okay. 4:9 is the First USA 21 Bank One account which -- that later became the 22 Exhibit 4:13 account, which is the Citi account. 00271 1 All right. 9 will be admitted. 4:9 admitted. 2 (Plaintiff's Exhibit Number 4:9 was 3 received into evidence.) 4 THE COURT: 10 is the list of payments. 5 MR. SMITH: Same objection to the 6 summaries. I was not provided with this earlier and 7 the track record is that they are not to be trusted. 8 THE COURT: Okay. And the total you show 9 as paid on that, Ms. Smith? 10 THE WITNESS: $3,092. 11 THE COURT: I'll sustain the objection to 12 4:10. 13 4:11, any objection to 4:11, Mr. Smith? 14 MR. SMITH: I do not believe I was ever 15 provided with this one so I object to it being used 16 because I haven't had a chance to review it. 17 THE COURT: Okay. Ms. Vardy, do you want 18 to respond to that at all? 19 MS. VARDY: Your Honor, we had sent to him 20 and we had updated it. Judge Ferris had ruled on 21 certain things that had to be provided and -- 22 THE COURT: This is the Chase Account, I 00272 1 believe, correct? I just want to make sure we're 2 talking -- 3 MR. SMITH: And it has a unique format. I 4 have never seen this before. 5 THE COURT: Right. This is the Chase 6 Manhattan -- 7 MR. SMITH: I review things quite 8 carefully. 9 THE COURT: This is the one that was 10 transferred to Wachovia Bank. The formerly joint 11 account was transferred over into this. 12 THE WITNESS: It was transferred from First 13 Union. First Union/Wachovia. 14 THE COURT: I'm sorry, First Union. 15 THE WITNESS: Which then became Wachovia. 16 THE COURT: Yeah. Okay. 17 MR. SMITH: So I do object as not having 18 been provided it previously. 19 THE COURT: All right. Ms. Vardy, did you 20 provide these; do you know? 21 MS. VARDY: Yes, Your Honor. I believe we 22 provided everything. 00273 1 THE COURT: I'll overrule the objection. 2 I'll allow 4:11. 3 (Plaintiff's Exhibit Number 4:11 was 4 received into evidence.) 5 THE COURT: How about 12? Any objection to 6 4:12? 7 MR. SMITH: Let me see. What is 4:12? 8 Again, it's a summary. I would object to having not 9 have been provided it earlier, and the track record 10 is that their summaries are inaccurate and -- 11 THE COURT: All right. Can you testify as 12 the total amount you paid on that particular 13 account? 14 THE WITNESS: $1,051. 15 THE COURT: Due to the fact it was a 16 summary prepared for litigation, I'll sustain the 17 objection to 4:12. 18 4:13 the Citi Platinum we've already 19 talked about. Do you have any objection to 4:13? 20 That's the one that came from the First Union, then 21 Wachovia Bank. 22 MR. SMITH: I do not believe I was provided 00274 1 this one. So I would object to this one as well. 2 THE COURT: Ms. Vardy, do you know if this 3 one was provided? 4 MS. VARDY: Your Honor, again, we provided 5 copies of everything we have, FedEx'd to him. 6 THE COURT: All right. I'll allow 4:13. 7 (Plaintiff's Exhibit Number 4:13 was 8 received into evidence.) 9 THE COURT: 4:14 is the listing of 10 payments. 11 MR. SMITH: Again, I'll object to the 12 summary as not provided and likely inaccurate. 13 THE COURT: All right. And the amount you 14 paid on that, Ms. Smith? 15 THE WITNESS: $975. 16 THE COURT: All right. I'll sustain the 17 objection due to the fact it's simply a compilation 18 prepared for the litigation purpose, 4:14. 19 4:15, I think this was a compilation of all 20 of them. 21 MR. SMITH: Yup. Same objection. 22 MS. VARDY: It is, Your Honor. 00275 1 THE COURT: All right. I think she has 2 testified to the total amount she has paid in each 3 category at this point. So I sustain the objection 4 to the compilation itself. 5 4:16 -- 6 MR. SMITH: I would object to this one -- 7 THE COURT: That was the Quicken. 8 MR. SMITH: Yes. I object to this as it is 9 just a summary where she gets to pick and choose. 10 And I had -- my attorney anyway had requested the 11 original copy -- 12 THE COURT: How is this relevant? 13 MS. VARDY: Your Honor, this shows bills 14 that Ms. Smith paid that were marital bills along 15 with the others. And Judge Ferris had ruled that we 16 could supply a Quicken account. 17 THE COURT: Is this what you supplied to 18 him? 19 MS. VARDY: Yes. I believe this is what we 20 supplied to him. I have a copy of what was mailed 21 to him. And I have a copy of -- 22 MR. SMITH: And I must object because this 00276 1 had been edited. I know because I use Quicken. 2 That for example, on page 2 -- Quicken doesn't come 3 up with gas station. It tells you exactly which gas 4 station. So the plaintiff has actually gone in 5 there and had edited the record before printing out 6 a copy of it. 7 THE COURT: I'll note your objection. I'll 8 overrule the objection to 4:16. 9 (Plaintiff's Exhibit Number 4:16 was 10 received into evidence.) 11 THE COURT: 4:17 was mortgage payment list 12 and utilities. Any objection to that? 13 MR. SMITH: Let's take a look here. Yes, I 14 object to that. In fact, I have a motion. This, I 15 believe, corresponds to the forms she filled out for 16 equitable distribution and I can prove that she did 17 not make several of these payments. They were, in 18 fact, made by me. 19 THE COURT: Okay. What -- your testimony 20 would be how much mortgage -- total mortgage 21 payments did you make over that period of time from 22 October 2002 to May 2003? 00277 1 MR. SMITH: I've never seen a summary 2 before so I'm not prepared to comment. This is the 3 first time I've seen this. 4 THE COURT: All right. I'll let Ms. Smith 5 answer that. Do you know how much the total was 6 that you paid towards the mortgage? 7 THE WITNESS: From October of 2002 through 8 May of 2003 it was $13,284.68. 9 THE COURT: For the electric cost? 10 THE WITNESS: $1,501.95. 11 THE COURT: And the Internet connection? 12 THE WITNESS: $274.75. 13 THE COURT: And the local telephone 14 service? 15 THE WITNESS: $334.70. 16 THE COURT: And the local telephone service 17 again? 18 THE WITNESS: $108.62. 19 THE COURT: Waste disposal? 20 THE WITNESS: $250.20. 21 THE COURT: And these are bills you 22 incurred and, in fact, have paid, as I understand 00278 1 it, correct? 2 THE WITNESS: Yes. 3 THE COURT: Okay. Thank you. 4 MR. SMITH: And I'll have to object to that 5 because I submitted a motion and proof that I paid 6 several of these myself. And in her earlier 7 testimony -- 8 THE COURT: Okay, sir. I think that 9 depends on the evidence I receive from you. If 10 you're going to object to the exhibit itself, I'll 11 sustain the objection. I think it's her compilation 12 for purposes of litigation. 13 MR. SMITH: Well, it doesn't match her 14 previous testimony where she stopped payment after 15 she moved out. 16 THE COURT: That may be. I'll let you 17 cross on that. 18 4:18 is the First Union account. Any 19 objection to 4:18, Mr. Smith? 20 MR. SMITH: Just a second, sir. 21 No objection to that one. 22 THE COURT: Okay. It will be admitted. 00279 1 (Plaintiff's Exhibit Number 4:18 was 2 received into evidence.) 3 THE COURT: I think the balance of them 4 have to do with the other issues you want to raise 5 later. 6 MS. VARDY: Okay. Your Honor, do you want 7 us to go through every one of these bills to verify 8 the amount that was paid out for the record? 9 THE COURT: Well, the ones I've admitted I 10 don't think it's necessary. I think they speak for 11 themselves. He can cross on those. My 12 understanding is your testimony is she paid those 13 bills and -- 14 MS. VARDY: And is paying on them. 15 THE COURT: Right. The compilations I 16 think she specified the totals on. But the bank 17 statements the Court has admitted I don't think we 18 have to review those. 19 MR. SMITH: I would ask her to specify the 20 totals. All she did is read it off the summary, 21 which I was not provided earlier. I don't see how 22 that makes it any more accurate. 00280 1 THE COURT: Okay. I understand your 2 position you weren't provided them earlier, but I 3 think she can testify what she actually paid. And 4 the law provides if she can't remember that -- I 5 assume you don't have that memorized, Ms. Smith? 6 THE WITNESS: No. 7 THE COURT: And she's allowed to refer to 8 documentation to refresh her recollection if she's 9 unable to remember it. So I'll overrule your 10 objection. 11 All right. Any other questions you have of 12 this witness? 13 MS. VARDY: I do apologize, Your Honor, for 14 not having copies to Mr. Smith, but I did this 15 compilation yesterday. But I couldn't follow to 16 question which account went where. And I just -- I 17 put it in because I thought it would be easier for 18 all of us. 19 THE COURT: Well, that's why I sustained 20 the objection to the compilations. But as I 21 understand it your position is that the underlying 22 documentation with regards to the accounts, the bank 00281 1 statements that had been provided to Mr. Smith 2 prior -- 3 MS. VARDY: Yes. 4 THE COURT: -- in accordance with the 5 Court's order for discovery. 6 Any other questions of Ms. Smith? 7 MS. VARDY: Yes, Your Honor. 8 BY MS. VARDY: 9 Q. I would like to turn our attention to Liam 10 Smith. And Ms. Smith, I -- we've met your son, but 11 I'd like you to describe your son for the Court. 12 Tell him -- Judge Potter about his personality. 13 A. Well, as I stated before, Liam is eight 14 years old. He is a very strong-willed child. He's 15 very creative. He is -- has lots of joy in life and 16 is outgoing with people. He tends to be a little 17 bit more cerebral than sporty. He likes to read and 18 play computer games. 19 And he has a terrific imagination. He -- 20 and a good memory. He wants to act out stories and 21 takes a lot of comfort in acting out the same 22 stories or clips from movies over and over and over 00282 1 again. 2 He does not typically enjoy school. And as 3 the teachers have testified before he does have some 4 behavior and impulse-control problems. And that is 5 not atypical for a child with Down Syndrome. I have 6 been told that the kind of things that they observe 7 at school are very common in children with Down 8 Syndrome. 9 And we're focusing, you know, in the school 10 and addressing his particular needs, which -- he 11 does have need for structure. He has some sensory 12 integration issues, which just means that it is -- 13 he can hear fine, he can see fine, but his -- how he 14 processes -- he has some deficits in how he 15 processes sensory impulse. And that leads to some 16 specific behaviors. 17 He enjoys motion a great deal. A lot of 18 times he'll lay down on the floor with his hands 19 tucked under his body, and that's a behavior they're 20 trying to deal with at school. So he does have some 21 very specific needs that can be dealt with, and if 22 accommodations are made for those specific things 00283 1 then he functions very well. 2 Q. Would you say that generally speaking he is 3 happy in his surroundings? 4 A. He extremes with a whole range of emotion. 5 He can be happy. He can be angry. I find that I'm 6 in trouble quite a -- a lot of the time. He -- he 7 is very oriented on getting his way. He is very 8 persistent. He is a boundary-pusher. And does well 9 with people who are firm and constructive and 10 setting very definite boundaries for him. 11 Q. Can you give us an example -- 12 MR. SMITH: Excuse me, Judge. Could I 13 request a five-minute recess? 14 THE COURT: Sure. You want a recess? We 15 can take ten minutes. We usually take one at 3:30 16 anyway. We'll take a ten-minute recess at this 17 time. 18 MR. SMITH: Thank you. 19 (A recess was taken.) 20 MS. VARDY: Your Honor, if I -- 21 THE COURT: All right. Let me go on the 22 record for just a minute. The guardian ad litem 00284 1 came in at the break and submitted his statement and 2 I'll go ahead and attach that to his report. So 3 we'll make that as part of his report, okay. Now, 4 you -- 5 MS. VARDY: If I could also break in. My 6 client does have a CD -- one of two CDs with all the 7 information she sent Mr. Smith. We have offered to 8 look at it. We don't have a computer, Mr. Smith 9 does. He declined to let us use his computer. 10 THE COURT: I'm sorry. It's a CD that she 11 has. 12 MS. VARDY: That she scanned the 13 information -- the discovery information into it and 14 FedEx'd him the CD. 15 THE COURT: Okay. 16 MS. VARDY: And she has a copy here. We 17 could check whether we did, in fact, send everything 18 we believe we sent. 19 THE COURT: I've already ruled on the 20 exhibits themselves. 21 MS. VARDY: Okay. I just -- 22 THE COURT: Okay. All right. Let's 00285 1 proceed. 2 MS. VARDY: Okay. 3 BY MS. VARDY: 4 Q. We were discussing Liam. Would you 5 describe Liam's relationship with his father. 6 A. Liam loves his father very much. He has 7 positive associations with his father. He likes the 8 time that he spends with him. 9 The -- maintaining the relationship by 10 phone I think has been difficult. He would like to 11 see his father. I think that he gets a little bit 12 confused about alliances or who he -- he feels like 13 he needs to be aligned with someone. And it comes 14 out frequently in my conversations with him. 15 He'll -- he'll tell me, you know, My dad's 16 mad at you, or he'll say just things -- just things 17 that lead me to believe that he is confused about 18 his relationship with Wes and with me. 19 And I have tried to give him as much 20 flexibility as possible that -- and let him know 21 that he can make up his own mind and that he's free 22 to have relationships with whoever he wants and to 00286 1 love whomever he wants. But -- and I think he's 2 confused about the things -- the conflicting things 3 he hears about the divorce. 4 His father will tell him, I don't want 5 to -- 6 MR. SMITH: Objection -- 7 THE WITNESS: Liam told me before -- 8 MR. SMITH: She doesn't know what I tell 9 him. 10 THE WITNESS: Liam has said to me before 11 that -- 12 MR. SMITH: Objection for hearsay. 13 THE COURT: It would be hearsay. I'll 14 sustain. 15 THE WITNESS: Okay. 16 THE COURT: You want to ask your next 17 question, ma'am. 18 BY MS. VARDY: 19 Q. Would you explain your position about 20 visitation a little more fully. 21 A. I would like very much for Liam to be able 22 to have a relationship with his father. I would 00287 1 like it to be stable and predictable for Liam. 2 Of course, I want Liam to be safe when he's 3 with his father. And to know where he is. To know 4 that the visitation schedule will be adhered to. 5 And that any difference will be -- that there will 6 be a reasonable effort -- a reasonable effort will 7 be made to accommodate any difference. 8 So that if there is any difference of 9 opinion that Liam is not aware of it. I want him to 10 be protected fully from any differences of opinion 11 that Wes and I may have about each other. About the 12 visitation schedule or anything related to custody. 13 It needs -- Liam needs to be able to count 14 on it. He is old enough to know, you know, if I 15 tell him we're going to do something Sunday, he 16 remembers. And he has put up with a lot of 17 disappointment. He has lost a lot through the 18 course of this divorce. And I don't want him to 19 lose any more. And so if this child thinks he is 20 going to see his father, he needs to see his father. 21 And if it's, you know, two weekends a month 22 or, you know, two weekends during the summer or 00288 1 whatever it is, it needs to happen when we say it's 2 going to happen and it needs to happen without any 3 conflict and it needs to happen with the focus being 4 on Liam. 5 Q. Can you explain to the Court your concern 6 in relation to what happened prior to the Court's 7 order suspending Mr. Smith's visitation. 8 A. If you're referring to the incident where 9 Mr. Liam -- or Mr. Smith took Liam to Michigan 10 without my knowledge? 11 Q. Yes. 12 A. And did not give me any indication. I was 13 scheduled to pick Liam up -- 14 MR. SMITH: I have to object. Rules 15 prohibit Ms. Vardy from getting her client to make 16 fraudulent statements. They are both aware in 17 documentation that I did notify them that I was 18 going to Michigan. I did -- they knew exactly where 19 to come pick him up. There's no doubt -- 20 THE COURT: That may be proper cross, 21 Mr. Smith. I'll overrule it as an objection at this 22 point. 00289 1 Go ahead, Ms. Vardy. 2 THE WITNESS: I -- Mr. Smith had told me 3 that he was being evicted from his apartment. He 4 didn't -- he -- among the various things he would 5 write to me were general statements about having to 6 move. But I did not know where and I did not know 7 when. 8 On -- before the Christmas break in 2004, 9 Liam was scheduled to spend the first half of the 10 break with his father. I was to pick him up at -- I 11 believe it was 1:00 on Christmas Day and Liam would 12 spend the rest of the Christmas break with me. 13 On Christmas Day I showed up at what I 14 believed to be Mr. Smith's residence and found boxes 15 stacked outside and nobody in the apartment, and I 16 did not know where Liam was. Evidently Mr. Smith 17 had e-mailed me at about 11:00 the night before 18 telling me that they were at their home -- at his 19 mother's home in Michigan and that I could come pick 20 Liam up there, which I did. 21 I left for Michigan the next morning and 22 picked him up at 6:00, I believe, on the 26th of 00290 1 December. But that clearly was not -- in my mind 2 that was not good for Liam. And it was not thinking 3 at all about what Liam's needs were. 4 Of course he needs to spend time with 5 cousins. And I have made offers to Wes' family 6 members to continue to let Liam spend time with 7 them, and as of now they have not taken me up on 8 that. 9 So that is important, but it can be done in 10 a way that if I tell Liam I will pick him up at 1:00 11 on Christmas Day, that I'm able to actually do that. 12 And so that Liam isn't exposed to the kind of 13 statements that let him know that his mother and 14 father disagree about things. He needs to not see 15 any of it. He has had an inkling of it. 16 Q. Okay. Do you believe that the conflict is 17 between the two of you is such that you feel that 18 you should have sole legal and physical custody? 19 A. The conflict -- the reason I feel I should 20 have sole legal custody is not just the level of 21 conflict with me, but the level of conflict with 22 everybody. 00291 1 Liam needs stability. He needs someone 2 who will be thinking about what's best for him, not 3 what is best given the current conflict. And there 4 is a pattern of moving Liam from daycares or wanting 5 to move Liam from particular daycares because of a 6 run-in with personnel. There are instances of 7 trying to move him from schools because of run in 8 with the personnel. 9 The conflict -- with Mr. Smith the conflict 10 tends to override everything else, in my opinion. 11 And Liam needs to have consideration of what he 12 specifically -- what's good for him without 13 personality conflicts. 14 Advocacy -- Liam needs an advocate. He 15 needs an advocate in the community, he needs an 16 advocate in the school. Advocacy is not about 17 getting your way all of the time. It's about 18 figuring out what he really needs and establishing 19 relationships with people. It's about open lines of 20 communication. It's about getting to know other 21 people and seeking out solutions. 22 You can't do that if you're fighting with 00292 1 people all of the time and if it's always about who 2 wins. Because if you're fighting with the school 3 you may get a few things you want for your child, 4 but you close down a lot of the informal mechanisms 5 that are available to solve problems in informal 6 ways. 7 And so it's extremely important that Liam 8 have an advocate that understands that that's what 9 advocacy is really about. It's not about fighting 10 for rights. It's about working on a consistent 11 basis to understand him and to understand the 12 systems and to figure out how to best get what he 13 needs within the constraints of the systems. 14 And knowing when it is appropriate to 15 fight. Because it is appropriate to fight at times 16 and to make a -- make a stand and to say, This is 17 not right. But that's not what it's about all of 18 the time. 19 Q. As a parent have you found at times -- how 20 have you found parenting Liam at this age in terms 21 of flexibility needed or figuring out what it is 22 that he needs? 00293 1 A. Well, Liam is at an age where he's able to 2 say what he wants. And he's -- he's getting just 3 barely where he's actually able to understand some 4 of the needs of others. 5 But he -- he needs -- he needs firm 6 discipline. Liam actually is very different than I 7 am. I mentioned he's a boundary-pusher. He is very 8 strong-willed. He doesn't care at all what other 9 people think. He's not invested in cultivating 10 other people's opinion. 11 And so it has taken him some time and I as 12 a parent having to learn to adjust my style to 13 figure out something that works for him. And there, 14 you know, I have experienced frustrations as a 15 parent. I'm not a perfect parent. And it's not as 16 if I've never gotten mad at him. Not as if he's 17 never not deserved it. 18 But I focus on discipline, not a 19 punishment, but it's teaching. And I have found 20 ways to be assertive with him and it has been hard 21 for me, it really has. But I have found how to do 22 it and I feel more confident as a parent now than I 00294 1 ever have before. 2 Q. Is Liam aware of the fact that he is 3 challenged? 4 A. I think he is. And something did happen 5 last summer and I'm not sure what it is. I don't 6 know if it was difficulties of the particular day 7 camp he was at. I don't know if it was because he 8 had planned on seeing his father over the summer and 9 then that didn't happen. I don't know what it was. 10 But something did happen over the summer. 11 One of the things that started happening in 12 conjunction with it, and I don't know if this was 13 the reason, but he did start articulating an 14 awareness in the differences between him and some of 15 the other children. 16 He would come home from the day camp and 17 tell me, Mom, the other kids think I'm strange. And 18 he can tell me now, Mom, I have Down Syndrome, don't 19 I? 20 And so he is aware of that and he seems to 21 be -- he gave me some indications before that that 22 was difficult for him. But I see him starting to 00295 1 become a little bit more comfortable with that. And 2 I know that's a long process for all of us to become 3 comfortable -- 4 THE COURT: Okay. I want to leave some 5 time for Mr. Smith to cross. 6 MS. VARDY: Okay. 7 MR. SMITH: What time will we run to? 8 THE COURT: We'll quit tonight at 5:00. 9 BY MS. VARDY: 10 Q. If the Court grants Mr. Smith visitation, 11 is there -- are there any restrictions you would ask 12 the Court to put upon him? 13 A. I would want to know where he was. I would 14 want it stipulated that neither of us, myself 15 included, neither Wes or I would say anything 16 negative about the other party. Anything not 17 positive. I would -- I would want it to be for 18 fairly brief periods of time, at least initially. 19 And I would prefer to drop Liam off and have Wes 20 bring him back. 21 Q. Would you like to elaborate on that? 22 A. Well, it was very difficult before we had a 00296 1 system where he would pick up and there were some 2 difficulty -- difficulties with that in terms of 3 trying to get ready. Lots of stress trying to get 4 ready. Because if -- if we were late, Mr. Smith 5 wasn't exactly patient. Liam would sense my 6 anxiety. 7 So it seems like if you can get ready to go 8 and then I -- be calm and be -- delivering him to 9 his father, I don't know how to explain it other 10 than that. It just sends -- it just sends the 11 signal that I am taking you here because I want to 12 instead of being picked up. 13 Q. Okay. Mr. Smith has made several 14 accusations -- 15 MR. SMITH: Objection. She's testifying. 16 THE COURT: Let her finish the question. 17 MS. VARDY: I'll rephrase. 18 BY MS. VARDY: 19 Q. Ms. Smith, are you currently in a 20 relationship with anyone? 21 A. I am. 22 Q. Okay. When did that -- how did that 00297 1 relationship start? 2 A. You're referring to my relationship with 3 Mr. Bakhir? 4 Q. Yes. 5 A. I met Mr. Bakhir at my place of work. 6 After I -- he worked in the same division that I did 7 when I started at SAIC. He was one of -- you know, 8 at the time he was just one of many people that I 9 knew there. We worked together on a number of 10 projects. And had a work relationship. We would go 11 to lunch sometimes, but I went to lunch with 12 everybody at work. 13 At some point Mr. Smith -- I did think he 14 was interesting. And I had expressed that to 15 Mr. Smith. And at some point Mr. Smith said he was 16 not comfortable with my going to lunch with 17 Mr. Bakhir, so I stopped. So the last -- from 18 probably the time period May through September of 19 2002 I did not see him outside of work. 20 After I separated from Wes, I resumed 21 having lunch with Igor again just in -- just as I 22 did all of my other coworkers. Over the course of a 00298 1 year we became better friends. 2 At the outset we just e-mailed each other 3 periodically. Later on we started going for walks. 4 We went for a couple of walks in the springtime. 5 And it just grew from there throughout the course of 6 that time period. So by the time the following 7 September, by the time I had been separated for a 8 year, it was -- it was more than a friendship. 9 Q. Did your relationship with Mr. Bakhir in 10 any way enter into your decision about separation? 11 A. It was not a factor in any way, shape or 12 form. 13 Q. Do you feel that it contributed in any way 14 to the dissolution of your marriage? 15 A. No. 16 Q. Okay. Do you feel that Liam is comfortable 17 with Mr. Bakhir? 18 A. Liam is torn about Mr. Bakhir. At the 19 outset Liam does not spend any time with Mr. Bakhir. 20 Over the last year he has spent an increasing amount 21 of time. I am careful to communicate to Liam that 22 Mr. Bakhir is my friend. But just by virtue of 00299 1 spending time with him they have established a 2 relationship. 3 Liam enjoys him. But he also knows that 4 his father doesn't like him. And so he kind of 5 vacillates. He'll -- he'll express, you know, 6 affection for him, at the same time saying that Igor 7 needs to stay away from him. So he's conflicted. 8 MS. VARDY: Thank you. 9 That's all, Your Honor. 10 THE COURT: All right. Your witness. 11 MS. VARDY: Your Honor, I would like if I 12 could have the opportunity to redirect -- we can do 13 it after cross -- about Ms. Smith's student loan. 14 THE COURT: About her what? 15 MS. VARDY: Student loans. The amount of 16 her student loans. 17 THE COURT: You want to ask her now? Go 18 ahead and ask her now. 19 MS. VARDY: Okay. 20 BY MS. VARDY: 21 Q. From memory, do you know how much your 22 student loan is for? 00300 1 A. The original balance was $18,000. I 2 believe somewhere around $12,100 or $12,200 was -- 3 that was the balance in September of 2002. The 4 current balance is somewhere around 5 nine-and-a-half-thousand dollars. 6 MS. VARDY: All right. Thank you. 7 THE COURT: Let me ask you just a couple 8 questions about your ED sheet so I'm clear on it. 9 The joint account, the First USA Bank One joint 10 account, it's on the bottom of page 4 of 5. It 11 shows a balance of $4,068 now. Have you been using 12 that account at all? Are either parties using that 13 account? 14 THE WITNESS: There was one account, I 15 don't remember which one it was, that had -- I had 16 used for a short time period that -- I think in 17 2004, and I had put about $463 in purchases on it. 18 THE COURT: Okay. 19 THE WITNESS: But I don't remember exactly 20 which one. It was either the First Union or the 21 First USA. 22 THE COURT: All right. The Dyhal Credit 00301 1 Union you don't show the balance. Do you not handle 2 that account? 3 THE WITNESS: I don't. I believe Mr. Smith 4 paid that one very soon after we separated. 5 THE COURT: As far as you know the joint -- 6 the marital debt has been paid on that? 7 THE WITNESS: Yes. 8 THE COURT: By Mr. Smith? 9 THE WITNESS: Yes. 10 THE COURT: Okay. And the Wachovia Bank, 11 formally First Union, which is now Chase Manhattan, 12 I guess, you handle that account yourself, I take 13 it? 14 THE WITNESS: Yes. 15 THE COURT: All right. That's a joint 16 account, but again that hasn't been used for joint 17 debts since the separation since '04 at least? 18 THE WITNESS: No. 19 THE COURT: Okay. 20 THE WITNESS: The only thing -- the only 21 thing that was used for was the cash advance to pay 22 for the mortgage for the months that Mr. Smith was 00302 1 in the house. 2 THE COURT: How much was that? 3 THE WITNESS: That was $4,100. 4 THE COURT: $4,180? 5 THE WITNESS: Uh-huh. 6 THE COURT: And the Capital One Mastercard, 7 you've been handling that account as well? 8 THE WITNESS: That's correct. 9 THE COURT: Okay. And those -- that and 10 the First Union were all for general purchases for 11 the family, I take it, during this time period? 12 THE WITNESS: Yes. 13 THE COURT: Citibank educational loan. Is 14 that your student loan? 15 THE WITNESS: That is. 16 THE COURT: Is that a separate debt, do you 17 know, or a joint debt? 18 THE WITNESS: That has just my name on the 19 loan. 20 THE COURT: You've been paying that debt? 21 THE WITNESS: Uh-huh. 22 THE COURT: Okay. I think that's all I 00303 1 have. 2 Mr. Smith, any questions you have of this 3 witness? 4 MR. SMITH: Oh, I have lots. 5 CROSS-EXAMINATION 6 BY MR. SMITH: 7 Q. Now, you stated that in September of 2002 I 8 was putting pressure on you to move out? 9 A. Yes. 10 Q. Now, is it not true instead that I was 11 requesting to stay married and work out the 12 differences? 13 A. As I remember it the way you stated it was 14 that I had to meet certain criteria. In my mind 15 they were impossible criteria, not even ones that I 16 didn't want to meet, but I just simply could not 17 meet. And so you had said, I want a divorce and you 18 need to move out if you don't meet these criteria, 19 and I simply could not. So that was the only option 20 available to me. 21 Q. Isn't it true you were the one who brought 22 up the issue of divorce in May of 2002 about the 00304 1 time of Igor Bakhir's divorce? 2 A. Well, actually, I don't know when the date 3 of Mr. Bakhir's divorce is, but I -- as I remember 4 it, I did not bring up that issue. I believe that 5 was brought up by you. 6 Q. You don't recall an incident where I 7 brought Liam back from the community center where he 8 had a class and you and I were planning to go to a 9 movie afterwards and you started screaming and 10 yelling at me about something about an affair with 11 the babysitter and screaming that you would divorce 12 me if I ever talked to her again? Do you recall 13 that? 14 A. I don't recall that incident and I'm fairly 15 sure I never told you that I would divorce you if 16 you ever talked to her again. 17 Q. Okay. Do you recall having that 18 conversation the day after you told me somebody at 19 work was trying to pick you up? 20 A. I don't remember saying -- no, I don't. 21 Q. All right. I have -- do you recall us 22 communicating by ICQ? 00305 1 A. I do remember while I was at work you would 2 send messages through -- we would send messages back 3 and forth via ICQ. 4 Q. And you went by SmithCHE; is that correct? 5 A. That's a possibility. 6 Q. And I went by memorable 43781877? 7 A. I don't remember what our screen names 8 were. 9 Q. I would like you to take a look and see if 10 you recognize this. 11 A. Uh-huh. 12 THE COURT: You need to say yes or no for 13 the record. 14 THE WITNESS: Oh, I'm sorry. Yes. 15 BY MR. SMITH: 16 Q. Can you read the comment that I sent you. 17 THE COURT: She can't read it unless you're 18 going to offer it, Mr. Smith. 19 MR. SMITH: I would like to offer it into 20 evidence. 21 THE COURT: Okay. Any objection, 22 Ms. Vardy? 00306 1 MS. VARDY: Your Honor, I guess I would 2 like to know whether my client feels this is the 3 full text. 4 THE WITNESS: Oh, heavens no, this wouldn't 5 be the full text. I mean, there were pages and 6 pages and pages of ICQ messages. 7 MS. VARDY: Then I'm going to object, Your 8 Honor. I have no idea what the context is or the -- 9 THE COURT: Do you have the balance of 10 them? 11 MR. SMITH: I do, out in the car. I have 12 about two or three inches thick to complete the 13 document. Can I have a recess to go get it? 14 THE COURT: If it's not complete then I 15 don't think it would be appropriate for her -- 16 MR. SMITH: It is complete in the car. 17 THE COURT: I don't think it would be 18 appropriate to admit this document so I'll sustain 19 the objection. 20 MR. SMITH: May I go obtain the complete 21 document, then? 22 THE COURT: You can ask your questions 00307 1 about that -- if you'd like to present that tomorrow 2 I'm sure we'll have time to do that. 3 MR. SMITH: Okay. 4 THE COURT: Okay. 5 MR. SMITH: So may I read her the 6 statement, then? 7 THE COURT: It wouldn't be appropriate to 8 read from it. You can ask her if she said certain 9 things or something like that. 10 BY MR. SMITH: 11 Q. Okay. Isn't it true then on June 3rd, 12 2002, that I wrote you and said, Do you think 13 there's any chance we could find a third party to 14 help decide who's right and wrong for specific 15 issues who you would believe? 16 A. You may have written that. 17 Q. And then followed up with, I would 18 certainly rather stay with you if we could get 19 along? 20 A. Well, that's a pretty big if, but I can 21 certainly say that I would have felt that, too. By 22 that time I was pretty certain that there was -- 00308 1 that all avenues had been exhausted. 2 Q. Isn't my stating that I would rather stay 3 with you conflict your statement about my trying to 4 force you out of the house? 5 A. No. Because I remember the way you stated 6 it. It was always very much -- I would like very 7 much to be married to you if you did this and if you 8 did this and if you did this. 9 Q. Do you recall that there was no such if, 10 if, if in this particular statement? 11 A. It may not be there in that particular 12 statement, but it was -- it was always part of the 13 message. 14 There was no doubt in my mind what needed 15 to be done and I worked very hard to clarify that 16 with you just to make sure it was very clear in what 17 you wanted. And it always came down to the same 18 thing. It was a matter of me meeting certain 19 criteria and you're always very consistent and 20 always very clear about this criteria, which I just 21 absolutely could not meet. 22 Q. Isn't it true that the criteria that I 00309 1 consistently insisted upon that you cease your 2 physical and verbal abuse? 3 A. No. That was not your criteria. 4 Q. Isn't it true that you have physically and 5 verbally abused me? 6 A. No, I wouldn't say that. 7 Q. I would like you to take a look and see if 8 you recognize this letter. 9 A. This is in e-mail I sent. 10 Q. Okay. Could you read me the first 11 paragraph there. 12 MS. VARDY: Your Honor, I'm going to object 13 unless it's going to be entered. 14 THE COURT: Again, if it's not admitted, 15 Mr. Smith, I think you want to offer that document. 16 MR. SMITH: Yes. I would like to offer 17 that as evidence. 18 THE COURT: Let's see if there's any 19 objection to that document. 20 MS. VARDY: Your Honor, I haven't seen the 21 document. 22 MR. SMITH: It's one of the exhibits in 00310 1 the -- 2 THE COURT: Why don't you show Ms. Vardy, 3 Mr. Smith. 4 MR. SMITH: You should have a copy of this. 5 Not to mention it's on the infamous website. 6 MS. VARDY: Your Honor, I just received a 7 copy of this -- these exhibits as well. 8 MR. SMITH: Have you not perused it on the 9 website? 10 THE COURT: Do you have any objection to 11 the exhibit, Ms. Vardy? 12 MR. SMITH: I believe it's one of the items 13 you've been objecting to being on there. 14 MS. VARDY: Your Honor, again, I -- it's 15 without context. I do object to it. 16 THE COURT: I don't know what it is. Do 17 you want to proffer what it is, Mr. Smith? 18 MR. SMITH: This one is the complete e-mail 19 message that Ms. Smith sent me on Friday, 20 February 4th, 2000. 21 THE COURT: Okay. Why don't you just show 22 it to her and see if she can identify it. 00311 1 THE WITNESS: Yes. This does look like 2 something that we did exchange. 3 THE COURT: I'll overrule the objection and 4 allow it to be admitted. 5 (Defendant's Exhibit Letter E was received 6 into evidence.) 7 BY MR. SMITH: 8 Q. Could you read the first paragraph for me. 9 A. I got some clearer idea from Brittany this 10 morning about what you need to hear from me. So 11 before I address the issue in your letter, I would 12 like to say I'm sorry I hit you and engaged in 13 various other bodily harm last Sunday. It was 14 inexcusable and I am embarrassed and sorry that it 15 happened. 16 Q. Thank you. 17 THE COURT: You're going to have to leave 18 that with the clerk so she has an exhibit for the 19 record. 20 MR. SMITH: Okay. I have some more that I 21 want to ask on this. 22 THE COURT: Okay. Go ahead. 00312 1 BY MR. SMITH: 2 Q. Do you recall that when we had arguments in 3 our home that I was the one who would try and get 4 away and that you would chase me and refuse to just 5 let an issue go? 6 A. I do believe that happened on some 7 occasions. I don't know that that was always the 8 case. 9 Q. Isn't it true it happened often enough that 10 you took up to putting signs around the house 11 instructing yourself not to follow and harass me? 12 A. I believe that was the case, yes. 13 Q. If you could please read this paragraph 14 here. 15 A. No, I have not managed to consistently not 16 follow you when you're upset. Although I do feel 17 I've made some progress. I've made up some more 18 signs that say "don't follow" to put up around the 19 house. 20 Q. Now, doesn't that conflict with the 21 statements that you put in your bill of compliant 22 that I was the one who was abusive and would harass 00313 1 you to the fact that you're having to put up signs 2 having to remind you not to harass me? 3 A. I don't see that as being conflicting. I 4 think it shows that I was really trying. I think it 5 shows that I really -- that there were systemic 6 problems in our marriage and that I was really 7 trying hard to figure out how to deal with them. 8 But it doesn't -- it doesn't conflict with my 9 statements that you were mentally and physically 10 abusive in the relationship. 11 Q. I'd like you to describe the incident in 12 which you hit me and, quote, engaged in other 13 various bodily harm. 14 A. I don't remember any specifics other than I 15 was very, very distraught. And felt under attack. 16 And I don't even remember what the conversation was 17 about. And I remember we did -- I think we were 18 wrestling. I don't remember the specifics. 19 Q. Do you recall kicking me? 20 MS. VARDY: Your Honor, I think -- 21 BY MR. SMITH: 22 Q. Just yes or no. 00314 1 A. No, I don't. I really don't. 2 Q. Do you recall choking? 3 A. I don't remember the specifics. I don't 4 remember the specifics. 5 Q. All right. 6 A. I do remember that I was very sorry for it 7 and wanted it to not happen again. And I did take 8 steps to -- to try to keep that from happening 9 again. That was very important to me. 10 Q. And wouldn't you say it was your anger and 11 losing control that was damaging our relationship? 12 A. I think it was -- I think that I did have 13 some anger and some other things that were damaging 14 to our relationship. I don't think that it was that 15 specific thing that was fully responsible for our 16 relationship. 17 Q. I would like you to read this sentence 18 right here. 19 A. Starting with, I'm not all that happy? 20 Q. Starting with the red. 21 A. Losing control seems to be especially 22 damaging to our relationship and so concentrating on 00315 1 getting rid of that seems like the most important 2 thing right now. 3 Q. Now, you're referring to you losing 4 control, correct? 5 A. I don't know. But even if I was, yes, that 6 would be very damaging to our relationship to have 7 one party who lost control. And it is something 8 that I would want to try to correct, but it's -- 9 that sole thing isn't the only reason we're here 10 today. 11 Q. Isn't another reason your adultery? 12 MS. VARDY: Objection, Your Honor. 13 THE COURT: I'll let her answer the 14 question. 15 THE WITNESS: No. That is not the reason 16 we're here today. 17 BY MR. SMITH: 18 Q. You don't believe that your deciding to 19 dump me and shack up with a coworker has any bearing 20 on the fact that we're in divorce? 21 A. My -- my relationship with Mr. Bakhir was 22 after the fact of our separation. It was long after 00316 1 the fact that our marriage actually ended. 2 Q. We'll get to that later. 3 A. And it doesn't really have any bearing on 4 this particular proceeding. 5 Q. Now, you've made complaints -- claims that 6 I was abusive. Isn't it true that that is not the 7 case that I -- although I'm rather blunt with 8 people, that you as my wife, I was very considerate 9 and that even with you trying to beat the heck out 10 of me I was still -- you were still unable to 11 provoke me to any violence? 12 A. Well, you did on occasion hit me. I 13 believe there were three or four occasions. It was 14 primarily -- 15 MR. SMITH: I'd have to object to that 16 because she did not provide that in the hearing on 17 the protective order. And the claims she made were 18 ruled false. 19 MS. VARDY: Your Honor -- 20 THE COURT: I'll overrule the objection. 21 You can go to your next question if you'd like. 22 BY MR. SMITH: 00317 1 Q. Okay. I'd like you to read what you wrote 2 right there. 3 A. Yes. I thought you handled -- did handle 4 it quite well after I hit you. I was thankful for 5 that. I'm sorry I didn't apologize to you better 6 after that. 7 MR. SMITH: Okay. Do I need to give you 8 this? 9 THE COURT: You need to give it to the 10 clerk if you want it part of the record. 11 THE WITNESS: There -- that letter I think 12 more than anything illustrates one of our problems 13 that did lead to the demise of our relationship. 14 And that was an improper of [sic] presumption of 15 responsibility on my part for a lot of what 16 happened. 17 I repeatedly did that throughout our 18 marriage and it was inappropriate and that was more 19 damaging than any of the things we're talking about 20 today. 21 BY MR. SMITH: 22 Q. So you're saying it was inappropriate for 00318 1 you to take responsibility for your anger and 2 violence? 3 A. No. But I think that there was a pattern 4 of my taking responsibility for things that I should 5 not have and not placing enough expectation and 6 responsibility on you to take responsibility for 7 your actions. 8 That letter -- you can probably find many 9 such examples of that kind of letter where we would 10 have a fight and I would write to you taking 11 responsibility for the whole thing. And over time 12 that's not a healthy thing. 13 Q. You don't think it's healthy for you to 14 take responsibility for you hitting me when I didn't 15 hit you? 16 A. Certainly it's healthy for me to take 17 responsibility for what I do and try to correct 18 those actions. It's not healthy for me to take 19 responsibility for things that I cannot control. 20 And that -- and that accounts for a lot of my 21 frustrations and actions. 22 Q. Are you saying you can't control your anger 00319 1 and actions? 2 A. I'm sorry. 3 Q. Are you saying you can't control your 4 anger? 5 A. No. There are a lot of things I can't 6 control. Those I have to learn to accept and not 7 try to change them. 8 Q. Do you remember going to see Ruth Welch? 9 A. I do. 10 THE COURT: Do we have a time frame on 11 this? 12 MR. SMITH: I think around '98. 13 THE COURT: You want to ask her? 14 BY MR. SMITH: 15 Q. Can you tell me when that was. 16 A. It would have been after Liam was born. 17 '98, '99. It was -- yeah. I just roughly remember 18 the time frame. 19 MS. VARDY: Your Honor, I'm going to object 20 to this. First of all, Ruth Welch was a counselor. 21 She is not here. Anything that Ruth Welch had to 22 say would be hearsay. And anything that had been 00320 1 taken as in the tape recording that Mr. Smith may or 2 may not have of my client's comments during that 3 therapy session would be covered by -- 4 THE COURT: There's no question outstanding 5 at this point except does she remember. So I'd like 6 to proceed to see if you have any objection to these 7 questions. 8 BY MR. SMITH: 9 Q. Do you remember going to see her? 10 A. I do. 11 Q. And going to see her with me? 12 A. I do. 13 Q. And did we not discuss your problems with 14 uncontrollable rage? 15 A. We did discuss a lot of things. My 16 reaction to conflict were part of them. And yes, I 17 did -- we did talk to her about how -- strategies 18 for me to be able to deal with conflict in a 19 healthier way. 20 Q. Isn't it true the both of you personally 21 and Ruth Welch described your conduct as, quote, 22 uncontrollable rage? 00321 1 MS. VARDY: Your Honor -- 2 THE WITNESS: I don't remember that at all. 3 MS. VARDY: -- I'm going to object -- 4 THE COURT: Sustain the objection to that. 5 BY MR. SMITH: 6 Q. Do you recall seeing that on my website? 7 Have you browsed the website and listened to the MP3 8 files that says that? 9 A. I try not to -- 10 MS. VARDY: Your Honor -- 11 THE COURT: I'll sustain the objection. 12 BY MR SMITH: 13 Q. So are you denying that you at that time at 14 least had uncontrollable rage? 15 A. I don't think I had uncontrollable rage. I 16 believe that I was under a severe amount of stress 17 and reacted in bad ways and I would get angry. I do 18 not have and did not at the time have uncontrollable 19 rage, just a general condition. There were specific 20 incidents where I did lose control. 21 Q. Now, you've stated I was unwilling to try 22 and negotiate a settlement both prior to your filing 00322 1 a protective order. But isn't it true that I 2 offered to negotiate a settlement and even after you 3 filed a false protective order that I was still 4 offering to work out a reasonable settlement rather 5 than to go through this type of court battle? 6 A. You would offer to negotiate a settlement, 7 but your first condition was always the same. That 8 was something that I could -- I simply could not do. 9 It was impossible to me. 10 Q. What was the condition? 11 MS. VARDY: Your Honor, I'm going to object 12 here. The condition that Mr. Smith is trying to 13 enter into is one that neither he nor my client are 14 capable of giving an expert opinion. Mr. Smith has 15 alleged that my client -- 16 MR. SMITH: That's unrelated to the 17 question. She said that I -- 18 THE COURT: I think she can answer the 19 question. 20 THE WITNESS: I'm sorry. Can you repeat 21 the question. 22 BY MR. SMITH: 00323 1 Q. You said I always insisted on something. 2 What was that? 3 A. You insisted that I recognize that I have a 4 mental illness and that I get treatment. And it 5 was -- I would often press for specifics. You know, 6 what did I need to do because I have meant this. I 7 had tried to meet that request to find out what was 8 wrong with me for several years prior. 9 And I had finally come to the conclusion 10 that it was an impossible request to meet. So I 11 would ask specifically, what do I need to do? Do I 12 need to go see a doctor? Will that satisfy you? Do 13 I need to get counseling? Will that satisfy you? 14 And you weren't ever able to tell me. 15 It was always just some general you need to 16 satisfy -- in fact, that's how you would say it. 17 You need to satisfy my -- you need to satisfy me 18 that your mental illness had been treated. But I 19 had already tried that for many, many years. And so 20 I knew that I couldn't do that. And so it was an 21 impossible request. 22 Q. Do you not agree that it's commonly 00324 1 accepted that people with a mental illness has 2 difficulty recognizing it? 3 A. Yes. But there are also signs you can look 4 at and I -- 5 Q. It was just a yes-or-no question. 6 A. Yes. But it's a -- 7 Q. Have you asked your mother to get treatment 8 for her mental illness? 9 A. I have wanted her to -- 10 THE COURT: Is that relevant, Mr. Smith? I 11 don't see how it's relevant. 12 MR. SMITH: Yes. Mental illness in 13 question is related by genetics and further to the 14 point to our son -- 15 THE COURT: It's not relevant. The mental 16 condition of her mother is not relevant for these 17 proceedings. So let's proceed, Mr. Smith. 18 MR. SMITH: Well, let me explain that. In 19 several ways it is. My wife has accused me of abuse 20 and suggest that she has a mental illness and asking 21 her to get help. She has done significantly 22 stronger steps against her mother and I'm assuming 00325 1 she does not claim she abused her mother. 2 THE COURT: Any steps she has taken 3 concerning her mother's mental health would not be 4 relevant to this Court, sir. 5 MR. SMITH: And the mental-health issue is 6 genetic. And it is something that very well might 7 be passed on to our son and it's something we need 8 to -- 9 THE COURT: I didn't know you were a 10 mental-health expert, Mr. Smith. 11 MR. SMITH: I am not a mental-health 12 expert. 13 THE COURT: You can't render an opinion 14 without being a mental-health expert. 15 MR. SMITH: I have asked -- 16 THE COURT: You need to understand this 17 Court's ruling. I think the issue for the Court is 18 the mental health of the parties, not the mental 19 health of the parties' parents. So I'm going to 20 object to your question. I don't think it's a 21 proper question. It's not relevant to this Court. 22 MR. SMITH: Respectfully I will object to 00326 1 that as the mental health of our son is stated in 2 the statute and the genetic predisposition to a 3 particular one is relevant. 4 THE COURT: Thank you, sir. You can ask 5 your next question. 6 MR. SMITH: We don't give a care what's up 7 with her mother, but if that's a possibility that 8 could be passed on to our son, that's something we 9 should -- 10 THE COURT: Ask your next question, 11 Mr. Smith. I've ruled. 12 BY MR. SMITH: 13 Q. Did I not offer to undergo the same testing 14 I was asking you to undergo? 15 A. I don't remember that you did or not. 16 Q. Do you recognize this? 17 A. Is this going to be entered? 18 Q. Yes. 19 A. Actually, I don't remember this e-mail. 20 It's possible that you sent it. I don't remember 21 this specific one. 22 MR. SMITH: Am I allowed to have that 00327 1 entered anyway? 2 THE COURT: No, sir. If she can't remember 3 the document it's not properly admitted. 4 MR. SMITH: What if I remember it? 5 THE COURT: It depends on whether it was 6 sent to her -- if it was sent to her and she can't 7 remember then you can't admit it at this time. 8 MR. SMITH: Okay. 9 THE COURT: Any other questions, Mr. Smith? 10 MR. SMITH: Yes, sir. I have lots of 11 questions. 12 THE COURT: You need to get to them. We're 13 still in 2002 by my recollection. You need to move 14 along. 15 MR. SMITH: That's when the most 16 interesting things happened. 17 THE COURT: All right. Let's proceed. 18 BY MR. SMITH: 19 Q. You have stated that I would not come to an 20 agreement as far as separation. Isn't it true that 21 you refused to negotiate a settlement? 22 A. No. In fact, to my recollection I offered 00328 1 a settlement the night before our final -- it's not 2 a property settlement, but a custody agreement right 3 before the final hearing in J&DR court. But you 4 know, again, those offers -- 5 Q. That's sufficient. I'd like to be able to 6 come back and revisit this tomorrow when I can bring 7 in some evidence to dispute that. 8 Moving on. You said that when I left the 9 home in November and December of 2002 that you 10 didn't know where I went, that you didn't know I was 11 leaving. Isn't it true that you were aware that my 12 mother had lung cancer? That it had went around her 13 artery and that she wasn't expected to survive and 14 that I went to Michigan to be there for her surgery? 15 A. I knew that your mother had cancer. I 16 assumed -- I didn't know what kind. I assumed it 17 was a reoccurrence of an earlier cancer she had had. 18 When you left I didn't have any advance notice -- 19 Q. I didn't ask you what type of cancer? 20 A. No. Because you asked me, didn't I know 21 where you were, and I did after the fact. You sent 22 me an e-mail after you had been gone and I don't 00329 1 remember how many days it was. 2 Q. Isn't it true that before I left, because I 3 was -- had assumed that it would adversely impact 4 the custody case, that I had my attorney, at the 5 time Mr. Bogie, work on an arrangement with 6 Ms. Vardy to where you would not hold it against me 7 for my going to Michigan to be with my mother for 8 her surgery? 9 A. I have no recollection of that. 10 MS. VARDY: Your Honor, I'm going to object 11 as to -- or -- what's the relevance of that 12 question? 13 THE COURT: Comes a little late, Ms. Vardy. 14 I'll overrule the objection. 15 BY MR. SMITH: 16 Q. You stated that you got your separate bank 17 account from Chevy Chase; is that correct? 18 A. Yes. 19 Q. Were you aware when you got the account 20 that that is same bank that Igor Bakhir banks at? 21 A. No. I had no idea. 22 Q. You've stated that you moved out in June 00330 1 2003? 2 A. Yes. I believe that's the case. 3 Q. At the time was there not a court order 4 requiring you to provide the Court in writing and 5 myself 30 days' prior notice of your moving out? 6 A. I had -- I thought it was a notice of where 7 I was 30 days after the fact. 8 Q. Or shall we just save time and accept that 9 the state law requires that be put in the orders? 10 THE COURT: Is that a question, Mr. Smith? 11 MR. SMITH: Yes, sir. If not, I'll take a 12 couple of minutes and pull it out. 13 Ms. Vardy's Exhibit A2. Do I need to have 14 her read the statement or shall I just read it? 15 THE COURT: I don't know what the question 16 is to her at this point, sir. 17 BY MR. SMITH: 18 Q. Does this not say that you are to provide 19 30 days' advance notice? 20 A. This is true, so -- and I did not. 21 Q. Isn't it also true that you did not provide 22 30 days' post notice either? But that you refused 00331 1 to provide me with your address at after you moved 2 out until the judge ordered it in person at the 3 custody -- next custody trial? 4 A. That is true. I asked to keep my address a 5 matter -- not make it known to you. 6 Q. So you personally thought you could violate 7 the court order and ignore what the judge said 8 because you decided you wanted to? 9 A. No. I asked to do that because I didn't 10 want to be harassed in my new apartment. 11 Q. Whom did you ask? 12 A. The Court, when I had a chance. 13 Q. So for 60 days you didn't have a chance 14 until we went to trial? 15 A. I don't remember the specifics. I don't 16 remember if a motion was filed. I don't -- or if I 17 just failed to comply, I don't remember. 18 Q. Why did you wish to hide your address? 19 A. Because I didn't want you to know where I 20 lived. 21 Q. Why was that? 22 A. Because I was afraid I would be harassed, 00332 1 which I was later at my apartment. I was 2 videotaped, I was watched. I didn't -- I didn't -- 3 I wanted my privacy. I wanted peace. 4 Q. And you felt your desire for privacy 5 overruled the court order that stated you didn't 6 have a right to that privacy? 7 A. I hoped that that would be taken into 8 consideration. 9 Q. Now, isn't it also true that while you were 10 so concerned about privacy and more accurately 11 trying to paint me out as abusive, which is why you 12 needed to withhold the address -- 13 MS. VARDY: Objection, Your Honor. 14 THE COURT: I sustain the objection as to 15 the form of the question, Mr. Smith. Go ahead and 16 restate the question. 17 MR. SMITH: Yes, sir. 18 BY MR. SMITH: 19 Q. Isn't it true on several occasions that you 20 chose to be alone with me after you had moved out of 21 the residence? 22 A. I can only think of one and that's when you 00333 1 dropped off a Christmas gift at my apartment and I 2 don't believe Liam was there. And I don't remember 3 any of the other specifics about it. 4 Q. Do you recall when you told me that you had 5 moved out of the house? 6 A. I do. You had just returned from an event 7 I had -- you had been at the field day, which had 8 taken you out for several hours. Some people had 9 come -- I made the decision -- 10 Q. That's correct. How did I return from the 11 field day? 12 A. I don't remember. 13 Q. Isn't it true that you came to pick me up 14 alone and while alone decided to give me the happy 15 news that you moved out? 16 A. I do believe that's correct. 17 Q. Isn't it true that at the same time waiting 18 at our marital home was your brother, Darryl Jones, 19 who is a rather large fellow and somebody who 20 certainly can protect you if needed and somebody I 21 actually liked having around? Why is it that you 22 chose to come alone rather than bring your brother 00334 1 with you? 2 A. Because I didn't tell you until we got 3 back. I had -- and I don't remember. I guess you 4 had car problems and I had agreed to drop you off 5 and bring you back, and after you got back, when 6 others were present, that's when I gave you the news 7 that -- because I remember we stood in the driveway 8 talking. 9 Q. Isn't it true you told me in the car on the 10 way, not after we arrived, and that I did tell you 11 that your actions were in violation of the 30 days' 12 notice and that I made you aware that you were 13 violating the court order? 14 A. I don't remember that specific 15 conversation. 16 Q. And you mentioned the car repairs. Do you 17 recall you, me and Liam making the trip to the 18 dealer to drop off the car alone? 19 A. Uh-huh. I don't -- 20 Q. That's -- I just want a yes. So at that 21 point you were not afraid, even after moving out you 22 were not afraid to be alone with me even when you 00335 1 had somebody else available to be with you whom I 2 would of liked to have along? 3 A. No. I wasn't afraid to be with you. I was 4 afraid I would be harassed. 5 Q. Thank you. That's all I need. 6 Now, you stated after you moved out that 7 you would reimburse me for things I bought for Liam? 8 A. That's correct. 9 Q. So while you were off working I was still 10 home taking care of Liam and you would -- 11 A. You weren't home taking care of Liam. Liam 12 was in daycare. 13 Q. Isn't it true the judge ordered Liam be 14 removed from daycare and placed in my care again? 15 A. At that time, yes. 16 Q. And isn't it true that you would give me 17 shopping lists if you wanted shoes for Liam, you 18 wanted clothes and I would go out and purchase them? 19 A. That's correct. 20 Q. So at that time, although uncomfortable, we 21 were still working together in a somewhat 22 cooperative manner to raise our son? 00336 1 A. Yeah. 2 MR. SMITH: Excuse me for a second. 3 BY MR. SMITH: 4 Q. We'll get back to that in a second. We'll 5 jump to a different topic. 6 Do you recall having to take Effexor and 7 Paxil to deal with your mental-health problems? 8 MS. VARDY: Your Honor, I object. 9 THE COURT: Sustain the objection. 10 MR. SMITH: I'd like to have her take a 11 look at these prescription receipts and see if she 12 recognizes those. 13 THE WITNESS: Uh-huh. 14 BY MR. SMITH: 15 Q. Do you recognize the prescription receipts? 16 A. Yes, I do. 17 Q. And you took those psychotropic drugs? 18 MS. VARDY: Objection, Your Honor. 19 THE COURT: I sustain the objection to the 20 form of your question. 21 THE WITNESS: I did take -- 22 THE COURT: Ma'am, wait for the next 00337 1 question. 2 BY MR. SMITH: 3 Q. Did you take these psychotropic drugs as 4 prescribed? 5 MS. VARDY: Your Honor, I'm going to 6 object -- 7 THE COURT: Sustained to the form of the 8 question. 9 BY MR. SMITH: 10 Q. Did you take these prescriptions? 11 A. I did. 12 Q. Are these not psychotropic drugs? 13 MS. VARDY: Your Honor, if I could object. 14 Neither party -- 15 THE COURT: If she knows, I'll let her 16 answer the question. 17 THE WITNESS: I have no idea. 18 BY MR. SMITH: 19 Q. What did you take the drugs for? Was it 20 for fun? 21 A. The -- the Paxil -- I think it was the 22 Paxil was prescribed by a physician when I lived in 00338 1 Connecticut. I was experiencing some chest pain and 2 he did a number of tests and didn't come up with 3 anything and suggested that I might be suffering 4 from anxiety, which I was dealing with a number of 5 family issues at the time. And so he prescribed the 6 Paxil. 7 The Effexor I took after -- I don't 8 remember. I guess it was when Liam was around a 9 year. I was experiencing some things that made me 10 wonder if something was wrong, if I wasn't 11 depressed. I went to a family physician and he 12 prescribed -- I think I actually tried two different 13 things -- 14 Q. It was for depression, though, wasn't it? 15 A. No diagnosis was ever made. That's what I 16 went to him for because I wondered if I had symptoms 17 of depression. 18 Q. So you're telling me a physician prescribed 19 Effexor for you without making a diagnosis of why he 20 was giving it to you? 21 A. I believe, yes. I mean, I didn't -- I 22 didn't see a psychologist who would be -- 00339 1 Q. I didn't ask about a psychologist. The 2 physician who wrote the prescription, odds are he 3 made a diagnosis. 4 A. He did not. 5 Q. Wasn't that diagnosis depression? 6 A. He was not -- I can't think of the word. 7 Q. Well, can we say you went to see him 8 because you were depressed? 9 A. I went to see him because I did think I was 10 experiencing some of the symptoms of depression. 11 Q. Okay. I'd like you to read the address on 12 the prescription for the Paxil, if you could, 13 please. You had stated it was in Connecticut. 14 A. 11411 Huntsman Drive. I remember I took -- 15 Q. Manassas, Virginia? 16 A. Yes. I did take two different medications. 17 MR. SMITH: I'd like to have this -- 18 THE COURT: Can you identify that, ma'am? 19 Do you know what that is? 20 THE WITNESS: The Paxil? 21 THE COURT: What you were just looking at. 22 THE WITNESS: Yes. Yes. 00340 1 THE COURT: Okay. You're satisfied those 2 are copies of the prescriptions? 3 THE WITNESS: Yes. 4 THE COURT: All right. They will be 5 admitted. 6 (Defendant's Exhibit Letter F was received 7 into evidence.) 8 BY MR. SMITH: 9 Q. Can you tell me how much of our marital 10 money was spent on your MBA and associated cost like 11 car, gas and daycare for Liam? 12 A. I have no idea how much that is. Some of 13 it was covered by grants and scholarships. A large 14 portion of the bill, at least for tuition, was 15 student loans, but in terms of the other cost I 16 really -- I really have no idea. 17 Q. Isn't it true that at least for a period 18 you attended school at night? 19 A. Yes. I was staying home with Liam during 20 the day and attended at night after you came home. 21 Q. And who took care of Liam at night? 22 A. For some of the period, you did. 00341 1 Q. Do you recall when you first put Liam in 2 daycare? And you gave them a letter stating who was 3 to be contacted and you put -- did you not put that 4 I was to be the primary contact for our 5 couple-week-old infant? 6 THE COURT: Do we have a time period on 7 this that we're talking about? 8 MR. SMITH: Yeah. That would be about 9 August of '97. 10 THE COURT: '97. 11 MR. SMITH: Right after he was born. 12 THE WITNESS: I don't -- I don't remember 13 what I put down as the primary contact. I don't 14 usually put myself because they already have my 15 contact information on the form. That's usually a 16 secondary contact in case of emergency. 17 BY MR. SMITH: 18 Q. You don't recall putting your class 19 schedule on there and saying contact me instead and 20 to only contact you if they couldn't get a hold of 21 me? 22 A. I don't remember doing that, no. 00342 1 Q. You said Liam does not enjoy school at the 2 present -- at Spring Hill? 3 A. I don't think he particularly cares for it. 4 Q. Isn't it true that he used to enjoy school? 5 A. He did when he was in preschool, yeah. 6 Q. Didn't he enjoy it at Bennent? 7 A. I don't remember. I don't think he enjoyed 8 Round; I don't think he liked kindergarten at Round. 9 I don't think he enjoyed kindergarten at -- the 10 demands are a little more stringent. 11 Q. Isn't it true that before you started the 12 court battle and to some extent afterwards that I 13 would participate with you in the IEP meetings? 14 A. I do remember some of the IEP meetings you 15 were there. You continued even after separation. 16 And some of those IEP meetings were quite continuous 17 and quite interesting due to your T-shirt attire. 18 Q. What about at Bennent? That didn't -- no 19 T-shirts there, right? 20 A. No. 21 Q. In fact, we pretty much agreed that we both 22 were trying to get him in to a mainstreamed 00343 1 classroom; is that correct? 2 A. Yes. That was -- that was the key 3 objective. 4 Q. Now, you stated that Liam has behavior and 5 impulse-control problems at the school? 6 A. Periodically. 7 Q. Isn't it true you have the same problem? 8 A. No, I don't. 9 Q. Would you call your lashing out and hitting 10 people not a problem with impulse control? 11 A. I don't typically lash out and hit people. 12 Q. How about as you've described you started 13 your affair after you decide on the court battle; 14 doesn't that show poor impulse control rather than 15 choosing to wait until afterwards? 16 A. I don't think there's a relationship. 17 Q. You planned to commit adultery while in the 18 middle of a court battle; is that what you're 19 saying? 20 A. My relationship with Igor was considered 21 and I did do it thoughtfully. 22 Q. Isn't it true that your affair with him 00344 1 started in 2002? 2 A. No. My relationship other than just that 3 of an acquaintance did not start in 2002. 4 Q. So he was just an acquaintance when you had 5 him over to our house in December of 2002? 6 A. Actually, that is the case. I had a number 7 of -- it was part of an overall effort on my part to 8 have the bulk of my friends over to my home, which 9 is something I wanted to do for a long time and 10 hadn't been able to do while we were married. 11 So prior to -- or when we were together, so 12 prior to the Christmas break that was -- it was a 13 plan, so he was not the only one. I had -- I had 14 several dinners with friends. 15 Q. But you had him over alone; isn't that 16 correct? 17 A. I did, uh-huh. 18 Q. And you had warm, dot, dot, dot, is that 19 the way you put it in the e-mail? 20 A. It did turn out to be very nice, yes. 21 Q. And did that involve physical contact? 22 A. None. 00345 1 Q. No kissing? 2 A. None. 3 Q. Seems an odd thing to describe for warm 4 dot, dot, dot. 5 THE COURT: Is that a question? Make it a 6 question. 7 BY MR. SMITH: 8 Q. Doesn't it seem odd to you if there was no 9 physical contact? 10 A. No. 11 Q. What was warm, then? 12 A. Just -- just the feeling. It was 13 comfortable. It was clam. 14 Q. And that didn't strike you as inappropriate 15 as a married woman to have a single coworker over at 16 your marital home? 17 A. As a married separated woman, no. And the 18 things we did -- I mean, I made dinner. We ate. We 19 sat and talked. We were ten feet apart. I mean, it 20 was -- it was not -- there was nothing inappropriate 21 about it. 22 Q. So while your husband is in the hospital 00346 1 taking care of his mother with cancer, you're in the 2 marital home with your new boyfriend having dinner 3 and that doesn't strike you as inappropriate? 4 MS. VARDY: Your Honor -- 5 THE WITNESS: I did not think it was 6 inappropriate. 7 BY MR. SMITH: 8 Q. Did you file any complaints with Child 9 Protective Services? 10 MS. VARDY: Your Honor, I'm going to 11 object. The whole purpose of Child Protective 12 Services is to keep the immunity of those who file 13 complaints. 14 THE COURT: I think it goes to their 15 relationship and the relationship of their child. 16 So I overrule the objection. I think she can answer 17 the question. 18 THE WITNESS: I did call their hotline with 19 a question. 20 BY MR. SMITH: 21 Q. What was your question? 22 A. I relayed what Liam had relayed to me. I 00347 1 did this after talking with a number of people. 2 It's not something that I did lightly and it's not 3 something that I did out of spite. I take my 4 responsibility to protect him very seriously. And 5 it's very difficult under the current circumstances, 6 especially given the poor communication to determine 7 exactly how to do that. So yes, I did. 8 He had -- he had said some things to me and 9 the way -- what he said and the way he had said it 10 and the way that he relayed the information to me 11 raised questions in my mind -- 12 Q. When was this? 13 A. -- about your state at the time. 14 Q. When was this? 15 A. That was -- it would have been September or 16 October of 2004, I believe. Maybe August. I don't 17 remember the exact month. And I didn't call to make 18 a report. I called the hotline to ask them what I 19 should do and relay to them what I had heard and 20 some of the circumstances. I answered their 21 questions and they did decide to initiate a 22 family -- 00348 1 Q. Do you have any documents associated with 2 that? 3 A. I have a letter from the Department of 4 Child Protective Services. With their conclusions 5 that they -- 6 Q. Do you have any notes about what Liam told 7 you? 8 A. Do I have any notes? No, I don't have any 9 notes about that. 10 Q. You didn't take any notes? 11 A. No. 12 Q. Is that the only time that you have 13 inquired via the hotline or made any other -- 14 A. Yes. I don't know what the other two. 15 Q. So you have no idea about the other two 16 reports? 17 A. No. 18 Q. What word did Liam use to describe the 19 person who supposedly had abused him? 20 A. I think he said "my dad." 21 Q. Is it possible that he meant Igor Bakhir? 22 A. It wouldn't have been possible because he 00349 1 had not been alone with Igor Bakhir at that time. 2 Q. Wasn't it possible that you both did it 3 together, then? 4 A. Oh, heavens, no. 5 Q. Now, isn't it true that you have exposed 6 our son to you affair with Igor Bakhir? 7 A. Liam knows that I'm seeing Igor. He knows 8 that he's my boyfriend. 9 Q. Does he know that you've been sleeping with 10 Mr. Bakhir? 11 A. He does know that we sleep together. He 12 hasn't been exposed to any sexual conduct. 13 Q. Isn't it true that by November 2003 he was 14 aware that you were sleeping with Mr. Bakhir? 15 A. It would have been because I testified at 16 an earlier trial that Mr. Bakhir had stayed the 17 night on two occasions in October of 2003. 18 Q. And that would have been at your 19 one-bedroom apartment? 20 A. Uh-huh. 21 Q. So the three of you, you, Mr. Bakhir and 22 Liam, were sleeping together in a one-bedroom 00350 1 apartment? 2 A. No. That's not the case. Liam had his own 3 bedroom. I had -- I slept on a fold-out couch in 4 the living room. 5 Q. When was the first time Mr. Bakhir spent 6 the night with you? 7 A. It was in September of 2003. 8 Q. When is the first time you and Mr. Bakhir 9 engaged in any sexual activity? 10 A. That similar time period. 11 Q. What about kissing? 12 A. That same time period. 13 Q. September of 2003? 14 A. Uh-huh. 15 Q. So about three months after you separated 16 you were already sleeping with somebody else? 17 A. Well, in my mind it was a full year. 18 Q. Three months from the time you left our 19 home? 20 A. Three months after I moved into my new 21 apartment, uh-huh. 22 Q. So isn't it possible to conclude the reason 00351 1 you moved out of the marital home and into your 2 apartment was to engage in sexual conduct with 3 Mr. Bakhir, not because of problems at our house? 4 THE COURT: That conclusion has to be left 5 up to the Court, I think, Mr. Smith, not this 6 witness. 7 MR. SMITH: All right. 8 BY MR. SMITH: 9 Q. How many other people have you had sexual 10 activity with? 11 A. None. 12 Q. Just Mr. Bakhir? 13 A. Uh-huh. 14 Q. Now, you stated that you had to leave the 15 house because it was stressful and conflict and 16 stuff like that; is that correct? 17 A. Uh-huh. 18 Q. And isn't it true instead that you sent an 19 e-mail to Mr. Bakhir about January -- I can pull it 20 out if you want me to -- of 2003 that stated 21 correctly that, When you are in the house I spend 22 all my time in the bedroom and I have no contact 00352 1 with you whatsoever; isn't that correct? 2 A. That was correct at the time. That wasn't 3 correct throughout the full six months that we were 4 together. 5 Q. So while you were in court complaining that 6 I was harassing you, I was actually hiding from my 7 abuser in my bedroom because I didn't want you to 8 attack me anymore? 9 A. I don't know why you were in your room. I 10 do know that you would spend a lot of time -- at 11 that time you did spend a lot of time there. You 12 would also take Liam in there and there was a lock 13 on the door that required a key or had -- anyway, 14 there was some way -- no, it did. It required a 15 key. 16 And you would take Liam there and lock the 17 door during times you didn't have visitation with 18 him so that I didn't have access. And from my 19 perspective that was a problem. 20 Q. Didn't the court order state that Liam was 21 allowed to be with me any time he wanted regardless 22 of visitation? 00353 1 A. I don't remember what the court order said. 2 What I would expect is that if I had asked to have 3 access to my son that I would have been granted 4 that. Which I was not. 5 MR. SMITH: Do I need to have her validate 6 the previous exhibits from Ms. Vardy? 7 THE COURT: If the exhibit has been already 8 admitted then she doesn't have to -- you don't have 9 to offer it at this time. It's already an exhibit 10 in the case. 11 BY MR. SMITH: 12 Q. I would like you to read item G. 13 A. The respondent shall not deny the 14 petitioner access to the child during the days in 15 which visitation was not scheduled and shall not 16 prevent the child from spending time with petitioner 17 if the child so desires. 18 Which I think I was always -- 19 Q. I just asked you to read it. 20 So it's correct that the court order said 21 that you did not have the right to prevent Liam from 22 coming to visit me in my bedroom and yet you still 00354 1 called the police to interfere with that; is that 2 not correct? 3 A. I did not prevent Liam from coming to visit 4 you. What I objected to and the reason I called the 5 police is that you wouldn't let him out. 6 Q. I wouldn't let him out? I didn't stop him 7 from leaving. The door did not lock on the inside. 8 Isn't it true that Liam desired to spend time with 9 me and you, being controlling, decided that -- to 10 call the police and harass our child who wanted 11 nothing more than just watch QuickTime videos on the 12 computer with me? 13 A. There is -- there's no reason why when I 14 requested he come out, and I don't remember why it 15 was. I do remember there was a valid reason for it 16 that he at least come to the door. There was no 17 reason to -- 18 Q. Let's move on to the next -- 19 A. -- keeping him in there and not let me have 20 access. 21 Q. Do you recall the time you went out to the 22 garage to have a call with Ms. Vardy and Liam came 00355 1 in my room again to watch the QuickTime videos I had 2 of him -- he loves to see pictures of himself -- and 3 that due to your poor conduct in calling the police, 4 as soon as I heard you come into the house, that I 5 grabbed Liam, ran out of the bedroom with him, stuck 6 at the top of the stairs and you asked him, Have you 7 been in his bedroom? 8 And when I said yes, that you then 9 proceeded to call the police anyway? Even though I 10 brought him out to you without you even asking. Do 11 you recall that? 12 A. I don't recall that. I don't think that 13 ever happened. 14 Q. Well, we'll have to -- 15 MR. SMITH: Judge, I'll need to bring the 16 tapes of that tomorrow. 17 BY MR. SMITH: 18 Q. Okay. Do you recall, then, your having 19 the police out to house with Ms. Vardy? 20 A. Yes. I don't remember the specific 21 circumstances. 22 Q. Similar issue, you were upset about Liam 00356 1 spending time with me. Do you recall what the end 2 result of that was? Did the police haul me off in 3 handcuffs? 4 A. No. They -- they brought Liam down. I 5 don't remember anything else. 6 THE COURT: Do we have a time period on 7 this? 8 MR. SMITH: It would have been in 2003. 9 Like I said, I have the actual recordings. 10 THE COURT: All right. 11 MR. SMITH: I can give you the exact 12 date -- I've got them with me. I can get them out 13 of my car on a recess. 14 BY MR. SMITH: 15 Q. Do you not recall that afterwards -- after 16 all this big commotion with the police cars, you 17 brought Ms. Vardy, in violation of proper ethics, to 18 come be a witness, that the end result of all this 19 was Liam asked me to play with him in his room? 20 That he specifically asked you to leave the 21 room so that he could be alone with me and that he 22 specifically stated he wanted the door locked so you 00357 1 couldn't come back in; do you recall that? 2 A. I don't recall that, no. 3 Q. You don't recall actually asking him, You 4 want me to leave; is that correct? 5 A. No, I don't. But it wouldn't be the first 6 time he has asked me to leave his room. 7 Q. So he could be alone with me? 8 A. Even so he could be alone with you. 9 Q. So with Liam wanting to be alone with me, 10 you, for whatever misguided reason, to call the 11 police to harass him rather than support him in 12 this? You -- we're in the same house. You could 13 hear if anything happened. You know, I'm not going 14 anywhere. And you would still call the police 15 rather than humor a disabled child? 16 A. It wasn't a matter of letting Liam spend 17 time with you. It was the times when -- 18 Q. That's correct. It was about control, 19 wasn't it? You wanted to control me. 20 MS. VARDY: Your Honor, I object to -- my 21 client was answering the question. 22 THE COURT: You need to let her finish. 00358 1 MR. SMITH: Sorry. 2 THE WITNESS: It was a matter of feeling -- 3 I didn't want to control you, but I did need to feel 4 like -- because threats had been made to take him 5 because he has been locked in there before because 6 there wasn't any -- I didn't feel that there was an 7 acknowledgment of my rights as a parent. 8 It was important for me that when I needed 9 him to get dressed for bed or do homework or eat or 10 whatever, during times that weren't your visitation, 11 which I would never try to do that when it wasn't -- 12 when it was during your visitation, but I'd be 13 supported and have access to him. 14 Q. Do you know about perjury? Do you know 15 about perjury? You just said you would not do that 16 during my visitation, which -- precisely the topic 17 we're moving on to. You have done that, haven't 18 you? 19 A. If I had, I don't remember. 20 Q. Let's refresh your memory. Do you recall 21 calling the police -- let's see, approximately 22 July 23rd, 2004, because I was spending 00359 1 court-ordered visitation two-week period with our 2 son Liam? 3 A. That was your interpretation of 4 court-ordered visitation. The Court wasn't clear, 5 if I'm thinking of the right incident. The court 6 order wasn't clear -- 7 Q. Let me see if you recognize this. 8 A. -- as to the date. 9 Q. Do you recognize this calendar? 10 A. Yes. This is the calendar that I put 11 together. 12 Q. That you put together to reflect the 13 court-ordered visitation? 14 A. Uh-huh. 15 Q. Is that correct? 16 MR. SMITH: I would like to have this 17 entered. Although I would need to ask her some 18 questions about it. 19 THE COURT: Any objection, Ms. Vardy? 20 MS. VARDY: No, Your Honor. 21 THE COURT: It will be admitted. 22 (Defendant Exhibit Letter G was received 00360 1 into evidence.) 2 THE COURT: And we're going to break at 3 this time, Mr. Smith. It's 5:00. 4 For the record, let me say that I think 5 it's clear since we've been six hours gathering 6 evidence in this case that the Court is in need of 7 scheduling -- setting a schedule for the hearing 8 tomorrow. So I'll go ahead and do that. 9 Ms. Smith, you can step down. 10 What we're going to do tomorrow is start 11 promptly at 10:00 and I'll allow the defendant 12 30 minutes to complete cross-examination. So 13 cross-examination will be concluded at 2:30 -- at 14 10:30. And then I'll allow the plaintiff to go 15 ahead and being his direct examination from 10:30 -- 16 I'm sorry, redirect from 10:30 to 11:00 by 17 Ms. Vardy. 18 And then from 11:00 to 11:30 I'll allow 19 the plaintiff to present his direct evidence. We'll 20 take a break. And from 11:40 to 1:00 I'll allow him 21 to complete his direct evidence. 22 When we come back from the lunch recess at 00361 1 2:00 to 2:30, I'm going to ask Ms. Vardy to proceed 2 with the cross of the plaintiff at that time. And 3 any -- then begin at 2:30 with the closing arguments 4 from the parties, and that will probably go to 5 about, I suspect, 3:30, somewhere around 3:30. 6 And then the Court will proceed to make its 7 final determination in the case. That takes about 8 30 to 45 minutes to make that final decision, so it 9 will take some time to render that for the record. 10 So we need to leave ourselves plenty of time to get 11 all the evidence in. There was only two days 12 requested by counsel and the parties for this 13 hearing. 14 But I think we'll go ahead -- we'll hold 15 you closely to that schedule, if you will, so we'll 16 make sure we get all the evidence in that you want 17 to get in. Okay? 18 MR. SMITH: Judge, I would like to object 19 to that. I had requested a four-day hearing and I 20 don't imagine we're going to get everything in and I 21 would like -- 22 THE COURT: You must get everything in 00362 1 within the time constraints -- 2 MR. SMITH: That's not realistically going 3 to happen. I'm not an attorney. We've got too much 4 to go over and I would like to feel the Court has 5 all the relevant information it needs before it 6 makes its determination. 7 THE COURT: You'll have that time period to 8 do just that, Mr. Smith. But I think we need to get 9 the evidence -- to the evidence as soon as you can. 10 All right. Okay. We'll be in recess then 11 until 10:00 tomorrow morning. 12 (Whereupon, the proceedings at 4:59 p.m. 13 were adjourned, to reconvene at 10:00 a.m. on 14 Tuesday, May 23, 2006.) 15 16 17 18 19 20 21 22 00363 1 CERTIFICATE OF REPORTER 2 I, Andrea L. Blakley, do hereby certify that 3 the foregoing proceedings were taken by me in 4 stenotype and thereafter reduced to typewriting 5 under my supervision; that I am neither counsel for, 6 related to, nor employed by any of the parties to 7 the action in which these proceedings were taken; 8 and further, that I am not a relative or employee of 9 any attorney or counsel employed by the parties 10 hereto, nor financially or otherwise interested in 11 the outcome of the action. 12 13 14 ________________________________ 15 Andrea L. Blakley 16 Notary Public 17 18 19 20 21 22