00364
  1   V I R G I N I A:
  2      IN THE CIRCUIT COURT FOR PRINCE WILLIAM COUNTY
  3   
  4   CHERI SMITH,                  )
  5            Complainant,         ) In Chancery
  6        vs.                      ) No. 53360
  7   WESLEY SMITH,                 ) Volume II
  8            Defendant.           )
  9            *       *       *       *       *
 10   
 11   
 12   
 13            The above-entitled matter came on for day
 14   two of trial on May 23, 2006, commencing at
 15   10:01 a.m., at the Prince William County Circuit
 16   Court, 9311 Lee Avenue, Manassas, Virginia,
 17   Virginia, before Andrea L. Blakley, Notary Public.
 18   
 19   BEFORE:
 20            THE HONORABLE RICHARD B. POTTER
 21   
 22            *       *       *       *       *

00365
  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, Pre se
 13            5347 Landrum Road
 14            Apartment 1
 15            Dublin, Virginia  24084
 16            Liamsdad@liamsdad.org
 17   
 18   
 19   
 20   
 21   
 22   

00366
  1                        I N D E X
  2   
  3   WITNESS:         DIRECT   CROSS   REDIRECT   RECROSS
  4   CHERI SMITH                368       414       416
  5   WESLEY SMITH       425     497
  6   
  7   EXHIBITS:                     PAGE RECEIVED
  8   Defendant's Letter F          371
  9   Defendant's Letter G          378
 10   Defendant's Letter H          382
 11   Defendant's Letter I          385
 12   Defendant's Letter K          390
 13   Defendant's Letter L          393
 14   Plaintiff's Number 6          410
 15   Defendant's Letter M          426
 16   Defendant's Letter P          428
 17   Defendant's Letter Q          435
 18   Defendant's Letter R          438
 19   Defendant's Letter T          440
 20   Defendant's Letter U          441
 21   
 22   (Exhibits continued on the next page.)

00367
  1   EXHIBITS:                     PAGE RECEIVED
  2   Defendant's Letter W          445
  3   Defendant's Letter X          450
  4   Defendant's Letter AA         455
  5   Defendant's Letter CC         457
  6   Defendant's Letter EE         477
  7   Plaintiff's Number 8          519
  8   Plaintiff's Number 7          520
  9   Plaintiff's Number 9          539
 10   
 11   
 12   
 13   
 14   
 15   
 16   
 17   
 18   
 19   
 20   
 21   
 22   

00368
  1                  P R O C E E D I N G S
  2                  -    -    -    -    -
  3            (The court reporter was sworn.)
  4            THE COURT:  All right.  Good morning.
  5   We're here in the case of Smith versus Smith.
  6   Ms. Smith is present together with counsel and
  7   Mr. Smith is present.  Chancery number 53360.
  8            Ms. Smith, you want to come back to the
  9   stand and we'll allow Mr. Smith to complete his
 10   cross-examination.  You were placed under oath
 11   yesterday, Ms. Smith.  I'm going to ask the clerk to
 12   place you under oath again today, if you don't mind.
 13   Whereupon --
 14                       CHERI SMITH,
 15   a witness, called for examination, having been first
 16   duly sworn, was examined and testified as follows:
 17                    CROSS-EXAMINATION
 18            BY MR. SMITH:
 19       Q.   Yesterday you saw our son here in the
 20   courtroom?
 21       A.   Yes.
 22       Q.   And did you see him indicate he wanted me

00369
  1   to come over and see him?
  2       A.   Yes.
  3       Q.   And he gave me a hug?
  4       A.   Yes.
  5       Q.   Okay.  Back to our questioning, if I can
  6   remember.  About -- you said you would not call the
  7   police during my visitation and that's where we
  8   stopped just at the point where I was going to prove
  9   that false.
 10            You had identified this calendar as the one
 11   you made up according to the court order to indicate
 12   when I had visitation and when I had not for the
 13   month of July.  And I would like for you to take a
 14   look at the starting period for my two-week
 15   visitation and state when that starts according to
 16   your own calendar.
 17       A.   On Wednesday, July 28th -- July 9th.
 18   Excuse me, on Friday, July 9th, at 7:00 p.m.
 19            THE COURT:  What year is this we're talking
 20   about?
 21            THE WITNESS:  2004.
 22            THE COURT:  2004?

00370
  1            THE WITNESS:  Uh-huh.
  2            THE COURT:  Okay.
  3            BY MR. SMITH:
  4       Q.   And that runs uninterrupted through
  5   according to your calendar?
  6       A.   The 25th of July 2004 at 7:00 p.m. on
  7   Sunday.
  8       Q.   All right.  And does it also indicate I am
  9   to have visitation overnight on the 27th?
 10       A.   It does.
 11            MR. SMITH:  Did we put this into evidence
 12   yesterday?
 13            THE COURT:  I don't know what it is.
 14            MR. SMITH:  The calendar.
 15            THE COURT:  I don't believe any calendar
 16   had been offered at that point.
 17            MR. SMITH:  All right.  I would like to
 18   offer it, then.
 19            THE COURT:  Would you show it to Ms. Vardy
 20   and see if she has any objection.
 21            MS. VARDY:  I would just like to ask my
 22   client, is this your handwriting?

00371
  1            THE WITNESS:  It is.
  2            MS. VARDY:  Okay.
  3            THE COURT:  All right.  Without objection
  4   we'll mark it as the next letter on behalf of the
  5   defendant, which is F, Exhibit F.
  6            (Defendant's Exhibit Letter F was received
  7   into evidence.)
  8            BY MR. SMITH:
  9       Q.   Isn't it true that you did call the police
 10   on July 23rd, 2004?
 11       A.   I don't remember the specific date.  I do
 12   remember that there was some --
 13       Q.   Could I refresh your recollection?
 14       A.   I would tell you everything I remember.
 15       Q.   I can help you recall the specific date and
 16   we need the specific date.
 17       A.   I'll share with you what I know myself.
 18            MR. SMITH:  Can I have her take a look at
 19   this?
 20            THE COURT:  Do you have a document you want
 21   to offer to her?
 22            MR. SMITH:  Yes.

00372
  1            THE COURT:  What is that?
  2            MR. SMITH:  I have a letter from Loretta
  3   Vardy with her statement of what occurred on that
  4   date.
  5            THE COURT:  You can show it to her and see
  6   if that refreshes her recollection.
  7            THE WITNESS:  Okay.  So it was July 23rd.
  8            THE COURT:  July 23rd, 2004; is that
  9   correct, ma'am?
 10            THE WITNESS:  Yes.
 11            THE COURT:  Okay.
 12            BY MR. SMITH:
 13       Q.   So on July 23rd, 2004, you called the
 14   police and asked them to take Liam from me; is that
 15   correct?
 16       A.   I did go that day expecting to pick up
 17   Liam.
 18       Q.   I just asked if you called the police.
 19       A.   I did call the police because you weren't
 20   there.
 21       Q.   And July 23rd, according to your calendar,
 22   was part of my uninterrupted visitation time; isn't

00373
  1   that correct?
  2       A.   It was.  There --
  3       Q.   Just yes or no.
  4       A.   It was, yes.
  5       Q.   And did you call me and ask me to hand Liam
  6   over to you on that date?
  7       A.   I don't remember.  I mean, I assume that I
  8   would have tried to call.
  9       Q.   Would you like to read her description
 10   again to help your memory or shall we call Loretta
 11   to testify about it?
 12       A.   I would need to look at that again.  I
 13   don't recall it saying anything about my calling.
 14            THE COURT:  Mr. Smith, I want to remind you
 15   that we do have a hearing schedule today so we're
 16   dealing with visitations that took place at this
 17   point in 2004.  Here we sit in May 2006.  As you
 18   know there's been a lot of orders entered by this
 19   Court since 2004.  And a lot of action in this case
 20   since then.
 21            MR. SMITH:  Yes.
 22            THE COURT:  I think --

00374
  1            MR. SMITH:  This issue is she does not
  2   follow the visitation orders and she repeatedly
  3   calls the police, which is definitely uncooperative
  4   according to the law and should be considered in my
  5   favor.
  6            THE COURT:  Okay, sir.  I'm trying to urge
  7   you to go ahead and get all your questions in before
  8   10:30.
  9            THE WITNESS:  Since I don't remember the
 10   specifics, can I read this?
 11            MR. SMITH:  Not out loud, but you can read
 12   it to yourself.  That's to refresh your
 13   recollection.
 14            THE COURT:  She has no recollection even
 15   after reading that, apparently; is that what you're
 16   saying?
 17            THE WITNESS:  Well, I know what it says
 18   there, but I don't remember the specific details.  I
 19   do remember I called the police.
 20            BY MR. SMITH:
 21       Q.   So we have established your statement that
 22   you made yesterday that you don't call the police

00375
  1   during my visitation time, which was your
  2   justification or excuse for calling them previously,
  3   is false.  That you did, indeed, call the police
  4   during my visitation time when you had already
  5   acknowledge in writing that it was my visitation
  6   time; is that correct?
  7       A.   I did call the police during --
  8       Q.   Thank you.
  9       A.   -- that visitation time.  But there were
 10   some --
 11       Q.   I'm not -- that's all I asked was if you
 12   called.
 13            And just yes or no.  Did you in December
 14   2003 again violate the visitation order and simply
 15   tell me that you will not provide him on time for
 16   visitation without an agreement otherwise?
 17       A.   December of 2003.  I don't recall.
 18       Q.   Would you like to read Ms. Vardy's
 19   statement to that effect?  Just the yellow portion.
 20       A.   It was in December 2003.  Yes, I did.
 21       Q.   You did keep him other days during my
 22   court-ordered visitation at that time?

00376
  1       A.   Yes.  For about five hours.
  2       Q.   Thank you.
  3            MR. SMITH:  Oh, and yesterday Loretta
  4   objected to my using some of the ICQ statements.
  5   She wanted the -- how did you phrase that?
  6            MS. VARDY:  Context.
  7            MR. SMITH:  Context.  I would like to
  8   submit the context.
  9            THE COURT:  I'll ask you to show that to
 10   Ms. Vardy so she can review it, sir.
 11            MS. VARDY:  Your Honor --
 12            THE COURT:  We'll review it at a break.  Go
 13   ahead and proceed.  It's about two inches' thick
 14   worth of documents.
 15            MR. SMITH:  I know.  That's why I
 16   requested -- her comment was ridiculous.
 17            THE COURT:  All right, sir.  Go ahead with
 18   your questions.
 19            BY MR. SMITH:
 20       Q.   Now, yesterday you said you did not recall
 21   a coworker trying to pick you up at work the day
 22   before you threatened me with divorce.

00377
  1       A.   I don't recall using that phrase, no.
  2       Q.   From the ICQ did you type that statement
  3   there?  Can you read that?
  4            MS. VARDY:  Your Honor, may I see that?
  5            THE COURT:  You want to show it to
  6   Ms. Vardy.
  7            MR. SMITH:  Yes.
  8            MS. VARDY:  Again, Your Honor, it's one
  9   text message.
 10            MR. SMITH:  There's no other context to it.
 11   I don't believe there's any other message that
 12   relates to it in there.
 13            MS. VARDY:  There's nothing there that
 14   shows the history of that.
 15            MR. SMITH:  Well, that's where it is.  May
 16   I have her read it?
 17            THE COURT:  Have we entered it?  I don't
 18   know that it has been entered.
 19            MR. SMITH:  Oh.  I would like to enter it,
 20   then.
 21            MS. VARDY:  I would object because it's a
 22   typed-out statement that doesn't show a time of

00378
  1   sending or where it was sent from.  I have no
  2   problem with my client reading it and if it
  3   refreshes her memory.
  4            THE COURT:  Okay.  I'll ask you to read it
  5   and see if it refreshes your memory, but not to read
  6   it out loud.
  7            THE WITNESS:  (Reviewing document.)  Okay.
  8            BY MR. SMITH:
  9       Q.   Do you recall sending that?
 10       A.   I think I do, actually.
 11            MR. SMITH:  Now, can I have it entered that
 12   she has acknowledged she wrote it?
 13            THE COURT:  Do you have any objection,
 14   Ms. Vardy?
 15            MS. VARDY:  No, Your Honor.
 16            THE COURT:  It will be admitted.
 17            (Defendant's Exhibit Letter G was received
 18   into evidence.)
 19            BY MR. SMITH:
 20       Q.   Please read that.
 21       A.   Just had a really funny experience.  I
 22   think somebody was trying to hit on me.  Remind me

00379
  1   to tell you about it tonight.
  2       Q.   Yes.
  3            THE COURT:  Do we have a date on that at
  4   all?
  5            MR. SMITH:  I believe it says May 17th,
  6   2002.  The day before she threatened divorce.
  7            BY MR. SMITH:
  8       Q.   I'd like to ask if you wrote this document.
  9       A.   I imagine this is something that I sent to
 10   his daycare.
 11       Q.   That's correct.  Can you read the date and
 12   the highlighted portion.
 13            MS. VARDY:  Your Honor, I have to object.
 14   May I see that?
 15            THE COURT:  Sustained.  You want to show it
 16   to Ms. Vardy.
 17            MS. VARDY:  I'm going to object because it
 18   doesn't say to whom it's written, and this is typed,
 19   it's not --
 20            MR. SMITH:  She just stated who it was
 21   written to.
 22            MS. VARDY:  She said --

00380
  1            THE COURT:  Mr. Smith, don't interrupt
  2   Ms. Vardy.
  3            MR. SMITH:  I'm sorry.
  4            MS. VARDY:  Unless my client can identify
  5   to definitely that she knows to whom she wrote it.
  6            THE COURT:  All right.  You need to lay a
  7   foundation for the document, Mr. Smith.
  8            BY MR. SMITH:
  9       Q.   Did you write this to a daycare provider?
 10       A.   It's possible.  I mean, it was eight years
 11   ago, almost nine years.  So I don't specifically
 12   remember writing this, but it does look like
 13   something I would write.
 14       Q.   For a daycare provider?
 15       A.   Uh-huh.
 16            MR. SMITH:  All right.  Can I have her read
 17   the date and highlighted portion?
 18            BY MR. SMITH:
 19       Q.   Now, these are your instructions to the
 20   daycare provider?
 21            THE COURT:  At this point she's just
 22   reading it to refresh her recollection.  You can ask

00381
  1   her when she sent that if you want.  Although, I
  2   have to tell you, Mr. Smith, I don't know how this
  3   document is relevant to these proceedings.
  4            MR. SMITH:  It shows that even as a
  5   couple-week-old infant I was the primary caregiver.
  6   That this document states if there's a problem with
  7   our son, at just a couple weeks old, a child with
  8   Down Syndrome, they are to call me, not her.  That
  9   I'm supposed to be the first contact.  I have always
 10   been one of his main caregivers.
 11            THE COURT:  Okay, sir.  If that's the
 12   purpose you want to introduce that, I'll allow you
 13   to do so.
 14            MR. SMITH:  Okay.
 15            BY MR. SMITH:
 16       Q.   Can you read the highlighted portion.
 17       A.   The primary contact is Wes Smith, father,
 18   at (703) 264-3226.
 19       Q.   And the date, please?
 20       A.   September 8th, 1997.
 21            MR. SMITH:  Can I submit that?
 22            THE COURT:  Any objection, Ms. Vardy?

00382
  1            MS. VARDY:  No, Your Honor.
  2            THE COURT:  All right.  You may.
  3            (Defendant's Exhibit Letter H was received
  4   into evidence.)
  5            BY MR. SMITH:
  6       Q.   Now, you stated yesterday you didn't start
  7   planning for divorce until September of 2002?
  8       A.   That's not what I stated.
  9       Q.   It's not?  All right.
 10            MR. SMITH:  Well, if it's allowed, Judge, I
 11   would like to move on to present some of mine, if I
 12   could recall her if I run into something.
 13            THE COURT:  No, sir.  You can pursue cross
 14   at this point.
 15            MR. SMITH:  Well, as you know from my
 16   filing on the ADD I'm not real organized.  It's a
 17   reasonable accomodation to allow me to go back.  I
 18   do not have the ability to present as an organized
 19   case as an attorney.
 20            THE COURT:  I understand your statement to
 21   the Court, sir, but I think we set a schedule so we
 22   need to stick to that schedule.

00383
  1            MR. SMITH:  Yes.  And I objected to the
  2   schedule.  I don't think it allows sufficient time
  3   to present the relevant information.
  4            THE COURT:  Your objection is duly noted.
  5            MR. SMITH:  All right.  Then what do we
  6   move on to next?
  7            THE COURT:  Do you have any other questions
  8   you want to ask her in cross-examination?
  9            MR. SMITH:  I'm sure I will, but as I
 10   stated I have a tough time being organized.  I'm
 11   assuming you're not going to want to wait five
 12   minutes while I look through.
 13            THE COURT:  You have ten minutes left for
 14   your period of cross-examination.  You can take it
 15   looking through your notes if you'd like or you can
 16   take it by cross-examining your witness.
 17            MR. SMITH:  All right.  I will take a look
 18   for a second.
 19            BY MR. SMITH:
 20       Q.   Can you identify what these photos are?
 21       A.   These are photos of the door to the room
 22   that you had been staying in.

00384
  1       Q.   That's correct.
  2       A.   The master bedroom.
  3       Q.   And what happened to the door?
  4       A.   It shows that I had drilled through --
  5   well, it shows that a hole had been put just above
  6   the doorknob.
  7       Q.   And you're the one who did that, correct?
  8       A.   Yes, I did.  That's correct.
  9       Q.   So at the time period at which you stated
 10   that I left you alone in the house and hid in my
 11   room, you found it unacceptable to leave me alone in
 12   there and drilled a hole through the door to get in;
 13   is that correct?
 14       A.   This -- I'm not sure when -- I'm trying to
 15   recall the time line.  Yes, I did drill through the
 16   door.  And I don't remember exactly when it was.  I
 17   remember it was either right after you returned from
 18   Michigan in January of 2003 or --
 19       Q.   That would be it.
 20       A.   It was right after.
 21            MR. SMITH:  All right.  I'd like to submit
 22   this.

00385
  1            THE COURT:  Any objection, Ms. Vardy?
  2            MS. VARDY:  No, Your Honor.
  3            THE COURT:  All right.  Admitted.
  4            (Defendant's Exhibit Letter I was received
  5   into evidence.)
  6            BY MR. SMITH:
  7       Q.   Would you say that you ever get so mad at
  8   Liam that you refuse to give him hugs?
  9       A.   No.  I -- but I know that I have said that
 10   on one occasion, but that's not a typical practice
 11   for me.
 12       Q.   I just asked if it happened, not if it's
 13   typical.
 14       A.   I do remember that incident.  And if that
 15   was the case --
 16            THE COURT:  Do you have a time frame on
 17   this incident?
 18            MR. SMITH:  Yes, it's dated.
 19            THE COURT:  I don't know what it is.  You
 20   haven't marked it yet, Mr. Smith.
 21            MR. SMITH:  I would like to offer this.  It
 22   is from May 22nd.  Approximately four days after she

00386
  1   started threatening divorce, 2002.
  2            THE COURT:  May 22nd, 2002?
  3            MR. SMITH:  That's correct.
  4            THE COURT:  That would be four years ago?
  5            MR. SMITH:  Yes.
  6            THE COURT:  All right.  Any objection,
  7   Ms. Vardy?
  8            MS. VARDY:  Your Honor, no objection, but I
  9   don't see the relevance.
 10            THE COURT:  I don't see the relevance
 11   either.  I'll sustain the objection.
 12            Any other questions of the witness,
 13   Mr. Smith?
 14            MR. SMITH:  I'm not allowed to have her
 15   read that?
 16            THE COURT:  No, sir.  I sustained the
 17   objection.
 18            MR. SMITH:  Okay.  Well, I would like to
 19   have it submitted.
 20            THE COURT:  I sustained the objection for
 21   the exhibit, Mr. Smith.
 22            MR. SMITH:  Yes.

00387
  1            THE COURT:  You can put it in the record if
  2   you'd like.
  3            MR. SMITH:  Yes.
  4            THE COURT:  All right.  You may leave it
  5   with the clerk.
  6            BY MR. SMITH:
  7       Q.   Did there ever come a time when you felt
  8   you had behavior problems that were caused by
  9   alcohol so you removed it -- all of it from our
 10   home?
 11            MS. VARDY:  I'm going to object.  There has
 12   been no allegation in his cross-bill or anything
 13   about alcohol.
 14            THE COURT:  I have no idea what the time
 15   frame is here.
 16            MS. VARDY:  Or what the time frame is.
 17            THE COURT:  I don't know if it's relevant
 18   or not.  So I'll sustain the objection.
 19            MR. SMITH:  March 2001.
 20            THE COURT:  March 2001.
 21            MR. SMITH:  Yes.
 22            THE COURT:  When she removed alcohol from

00388
  1   the home?
  2            MR. SMITH:  That's correct.
  3            THE COURT:  Five years ago?  I'll sustain
  4   the objection to the fact it's not relevant to these
  5   proceedings.
  6            MR. SMITH:  I believe it's relevant just to
  7   show that she thought she had behavior problems.  I
  8   don't think she had a problem with alcohol.  It
  9   helped her.
 10            THE COURT:  Your exception is noted,
 11   Mr. Smith.
 12            MR. SMITH:  All right.
 13            THE COURT:  You have five minutes.
 14            MR. SMITH:  Yes, sir.
 15            BY MR. SMITH:
 16       Q.   Do you recall an incident in March 2001
 17   where you flipped the lights off on me while I was
 18   going downstairs?
 19       A.   I don't remember that at all.
 20       Q.   You don't recall tuning on and off and then
 21   just pounding on it so much that your hands were
 22   sore the next day?

00389
  1            MS. VARDY:  I'm going to object again on
  2   the issue of relevance.  This is March of 2001.
  3            THE COURT:  Time frame again is 2001?
  4            MR. SMITH:  That's correct.
  5            THE COURT:  Sustain the objection.
  6            BY MR. SMITH:
  7       Q.   Did you write a will in April of 2002?
  8            MS. VARDY:  Your Honor, again, I'm going to
  9   object to the relevance.
 10            THE COURT:  What's the relevance of her
 11   will, Mr. Smith?
 12            MR. SMITH:  She makes a reference to whom
 13   she wants to take care of our son and our estate.
 14            THE COURT:  I'll let her answer the
 15   question.
 16            THE WITNESS:  I remember putting together a
 17   will and -- but I don't remember exactly when --
 18   when it was done.
 19            BY MR. SMITH:
 20       Q.   Do you recall who you put in that you
 21   wanted to take care of our estate and Liam?
 22       A.   I think that we had decided on your brother

00390
  1   Thaniel, but I haven't looked at it since we put it
  2   together.
  3       Q.   That's correct.
  4            MR. SMITH:  I'd like to submit that.  Do
  5   you want to see that, Loretta?
  6            MS. VARDY:  Yes, please.
  7            Your Honor, I do object to the fact that he
  8   has underlined parts of that.  If that's the copy
  9   I'm willing to waive that objection.
 10            THE COURT:  All right.  It will be
 11   admitted.
 12            (Defendant's Exhibit Letter K was received
 13   into evidence.)
 14            BY MR. SMITH:
 15       Q.   Now, in early 2002 after I stopped working,
 16   would you say that I became more patient then?
 17       A.   No.  I would not say that at all.
 18       Q.   Yes.  In your statement you had -- to the
 19   Court you said I became less patient.  However, I
 20   would like you to take a look at this.  At the top.
 21            MR. SMITH:  Do I need to have Loretta look
 22   at this?

00391
  1            THE COURT:  If you're going to offer it,
  2   sir, you have to always show it to counsel before
  3   you offer it to the Court.
  4            THE WITNESS:  It's not clear specifically
  5   what I'm referring to.  I mean --
  6            MR. SMITH:  Well, let me show it to her.
  7            MS. VARDY:  Your Honor, I'm going to object
  8   since my client has not jogged her memory.
  9            THE COURT:  Sustain the objection.
 10            MR. SMITH:  And I would like to have that
 11   changed as this is a copy that Loretta provided me
 12   in discovery.
 13            THE COURT:  You can ask the witness that.
 14            THE WITNESS:  Do you have -- do you have
 15   the -- what's before that?
 16            BY MR. SMITH:
 17       Q.   You want to know what comes right before
 18   that?
 19       A.   Yeah.  Okay.
 20       Q.   All right.  I'll go ahead and read this.
 21   This is a statement that I made.  I said, I am much
 22   better at being patient when I'm not stressed out by

00392
  1   my job.
  2            And your response was?
  3       A.   It's nice that you are more patient now.
  4       Q.   And --
  5       A.   I think I'm less patient so you balance me
  6   out a bit.
  7       Q.   And that is directly the opposite of what
  8   you put in your bill of complaint at the period --
  9   the same time period in the bill of complaint you're
 10   saying that I become less patient and I've become
 11   angry.
 12       A.   This is in February, about three weeks
 13   after you quit your job.  So it's not representative
 14   of that time period preceding the divorce.
 15       Q.   In the bill of complaint it says after I
 16   quit my job in January I became angry and less
 17   patient.
 18       A.   That was the case.
 19       Q.   No.  It says at that point?
 20            THE COURT:  Okay, Mr. Smith.
 21            MR. SMITH:  I would like to offer that.
 22            THE COURT:  Any objection to the exhibit?

00393
  1            MS. VARDY:  Your Honor, I would ask that
  2   Mr. Smith also -- if it is submitted with the page
  3   before it.
  4            THE COURT:  All right.
  5            MR. SMITH:  We're going to submit the whole
  6   thing here.
  7            THE COURT:  You want to add the page before
  8   it so it's complete, Mr. Smith.
  9            (Defendant's Exhibit Letter L was received
 10   into evidence.)
 11            THE COURT:  All right.  And that concludes
 12   cross-examination time.  We'll proceed with any
 13   rebuttal question.
 14            MR. SMITH:  Did you want me to provide the
 15   whole thing, then?
 16            THE COURT:  Are you going to offer the
 17   whole document?  Do you have any objection to the
 18   whole document?
 19            MS. VARDY:  Yes, Your Honor.  I --
 20            THE COURT:  Okay.  I think we need to give
 21   her an opportunity to look though that before I
 22   rule.

00394
  1            MR. SMITH:  Okay.
  2            THE COURT:  Ms. Vardy, do you have any
  3   questions then for redirect?
  4            MR. SMITH:  But the page before will come
  5   with the whole thing.
  6            MS. VARDY:  No, Your Honor, I don't.
  7            THE COURT:  All right.  Ms. Smith, let me
  8   ask you some questions before you step down, just
  9   briefly.
 10            First is your work record.  I just want to
 11   make sure I've gotten a complete record from
 12   Mr. Smith.  And he has testified that you were
 13   working part time in 1996.
 14            THE WITNESS:  That's correct.  I worked
 15   half time.
 16            THE COURT:  What type -- where were you
 17   working then?
 18            THE WITNESS:  I was working at BARE
 19   Pharmaceuticals in their quality assurance
 20   laboratory in a job-share arrangement.
 21            THE COURT:  Okay.  And then Liam was born,
 22   I think, in July of '97?

00395
  1            THE WITNESS:  Uh-huh.
  2            THE COURT:  And you got your MBA when?
  3            THE WITNESS:  It was awarded in December of
  4   2000.
  5            THE COURT:  Okay.  And was there, in fact,
  6   an agreement that you would go to work and your
  7   husband would then stay home and take care of Liam?
  8            THE WITNESS:  We had talked about that.
  9            THE COURT:  Okay.  And that is pretty much
 10   what happened after that, I take it?  After you got
 11   your MBA did you go to work with anyone before you
 12   went with your current employer?
 13            THE WITNESS:  No.
 14            THE COURT:  Okay.  And I think you said
 15   January 2002 you started with your current employer?
 16            THE WITNESS:  It was -- I started with them
 17   as a temp.  My official start date was in September
 18   of 2001.
 19            THE COURT:  Okay.
 20            THE WITNESS:  I started three months
 21   previous to that through a temporary agency.
 22            THE COURT:  All right.  And it looks like

00396
  1   during that period of time, at least in 2003,
  2   Mr. Smith was still employed and had an income
  3   during that period of time?
  4            THE WITNESS:  Not during 2003.  He was
  5   employed until January of 2002.
  6            THE COURT:  Okay.  And then what happened
  7   after January 2002?
  8            THE WITNESS:  He quit his job and he did
  9   stay home.  He did not take care of Liam during the
 10   day.  Liam was in daycare during that time period.
 11            THE COURT:  That was in 2002?
 12            THE WITNESS:  Uh-huh.
 13            THE COURT:  And then he was unemployed in
 14   2003?
 15            THE WITNESS:  From the period of January
 16   2002 until -- I believe he started his next position
 17   in October of 2003.
 18            THE COURT:  Well, did he quit his job in
 19   2001?
 20            THE WITNESS:  No.
 21            THE COURT:  No.  He was still working?
 22            THE WITNESS:  Uh-huh.

00397
  1            THE COURT:  And 2002 he quit?
  2            THE WITNESS:  Uh-huh.
  3            THE COURT:  Do you know when he quit?
  4            THE WITNESS:  It was the early part of
  5   January of 2002.
  6            MR. SMITH:  Judge, I have to object to the
  7   use of the term "quit."  I don't think that was the
  8   case.
  9            THE COURT:  Okay.  Stopped working.
 10            MR. SMITH:  Thank you.
 11            THE COURT:  And then, in fact, your
 12   original testimony was that your issues began in
 13   your marriage in September 16th, 17th in 2002.
 14            THE WITNESS:  That isn't when our issues
 15   began, but that's when I --
 16            THE COURT:  I thought your separation
 17   began, as far as you were concerned.
 18            THE WITNESS:  Uh-huh.
 19            THE COURT:  And so from the time he stopped
 20   working in January 2002 to September 2002 --
 21            THE WITNESS:  Uh-huh.
 22            THE COURT:  -- is when you started to have

00398
  1   your -- your position was your separation at that
  2   time?
  3            THE WITNESS:  I'm not sure I understand.
  4            THE COURT:  Well, I guess my point is he
  5   didn't quit to stay home with Liam for two, three,
  6   four years.
  7            THE WITNESS:  No.
  8            THE COURT:  It was only from January 2002
  9   until your dispute in September of 2002 and he was
 10   staying home and taking care of Liam.
 11            THE WITNESS:  He was not taking care of
 12   Liam.
 13            THE COURT:  He wasn't?
 14            MR. SMITH:  I have to object to dishonesty.
 15   I was.  I was the one responsible for putting him on
 16   the bus.
 17            THE COURT:  Okay.  Thank you.  I'll
 18   overrule the objection.
 19            Let me ask you about some of the issues,
 20   and we've talked about this in terms of your assets.
 21   You've submitted your assets list.  How would you
 22   describe your standard of living at the time of your

00399
  1   separation in 2002 -- September or December prior
  2   to -- just prior to your separation?  How would you
  3   describe it?
  4            THE WITNESS:  We had a nice home.  We
  5   hadn't -- our standard of living was fairly good.
  6   My income was not -- at the time was only making
  7   about $57,000 as we had been going into debt since
  8   about, I guess, May when our savings ran out.
  9            THE COURT:  May of?
 10            THE WITNESS:  May of 2002.
 11            THE COURT:  Okay.
 12            THE WITNESS:  So -- but we still had a
 13   fairly decent standard of living.
 14            THE COURT:  Did his barely bring in making
 15   monetary contributions after that contribute to
 16   difficulties, you think?
 17            THE WITNESS:  Only partially.  But I don't
 18   think it was about money.
 19            THE COURT:  Okay.  Prior to that --
 20            MR. SMITH:  I have to object, Your Honor.
 21            THE COURT:  Prior to that both you and he
 22   have been employed either part time or full time?

00400
  1            MR. SMITH:  Judge, I'd like to object.  The
  2   document I submitted has her clearly stating that
  3   things go better when she works and I don't.
  4            THE COURT:  Okay.  I understand your
  5   objection.  It's overruled.
  6            Were both of you working during the course
  7   of your marriage for the most part?
  8            THE WITNESS:  For the most part.  For some
  9   parts we had worked together on a business.  And --
 10   and there were periods where the business wasn't
 11   that active and I would take care of what was
 12   necessary for the business, but it wasn't a
 13   full-time job.
 14            THE COURT:  Who -- what kind of
 15   non-monetary contributions were you making through
 16   the marriage?  In terms of preparation of meals and
 17   doing laundry and doing the cleaning, that sort of
 18   thing.
 19            THE WITNESS:  It varied from time to time.
 20   There were times when Mr. Smith would make a lot of
 21   contributions.
 22            MR. SMITH:  Judge, I have to object to you

00401
  1   asking the questions.  Ms. Vardy represents her.
  2            THE COURT:  Thank you, sir.
  3            MR. SMITH:  You're well-known for
  4   representing the women in the county and that's
  5   inappropriate.
  6            THE WITNESS:  I overrule your objection,
  7   Mr. Smith.
  8            Okay.  So it varied from time to time?
  9            THE WITNESS:  Uh-huh.
 10            THE COURT:  And he made non-monetary
 11   contributions as well?
 12            THE WITNESS:  Yes.
 13            THE COURT:  Okay.  And he made monetary
 14   contributions, that has been your testimony?
 15            THE WITNESS:  Yes.
 16            THE COURT:  All right.  And in terms of
 17   your mental health, have you ever been placed in a
 18   mental hospital?
 19            THE WITNESS:  No.
 20            THE COURT:  Have you ever been under the
 21   care of a psychiatrist?
 22            THE WITNESS:  No.

00402
  1            THE COURT:  You took some medications, but
  2   they were not prescribed by a psychologist or a
  3   psychiatrist?
  4            THE WITNESS:  Yes.
  5            THE COURT:  Was that a general
  6   practitioner?
  7            THE WITNESS:  Yes.
  8            THE COURT:  And when did you take that
  9   medication?
 10            THE WITNESS:  Just to -- I felt like I
 11   needed help dealing with some of the --
 12            THE COURT:  Do you remember the time
 13   period?
 14            THE WITNESS:  Yes.  One of them was -- I
 15   think it was 1996 when -- and that's when I was on
 16   Paxil for anxiety.  I was dealing with a lot of --
 17   significant family problems.  My family lived in
 18   Utah and I lived in Connecticut.
 19            MR. SMITH:  I have to object.  She was not
 20   on Paxil at that time.  I've already submitted a
 21   prescription --
 22            THE COURT:  Mr. Smith, you have to let her

00403
  1   testify.  I overrule your objection, sir.
  2            There was a court order from Juvenile Court
  3   requiring both parties to have a psychological
  4   evaluation.
  5            THE WITNESS:  Yes.
  6            THE COURT:  Was that performed?
  7            THE WITNESS:  Yes, it was.
  8            THE COURT:  And was there a written report
  9   filed with the Court?
 10            THE WITNESS:  There was.
 11            THE COURT:  Okay.  I couldn't find one in
 12   the record.  Do you know whether it was filed with
 13   the Juvenile Court or not?
 14            THE WITNESS:  It -- it was filed with the
 15   Juvenile Court.  I believe that when we had the
 16   pendente lite hearing that it was not allowed as
 17   evidence.  But there was -- there is a copy of it.
 18            THE COURT:  But that was a condition of
 19   visitation and custody and both parties did comply
 20   with that portion of the order?
 21            THE WITNESS:  Well, that -- that particular
 22   custody evaluation was done for the purpose of the

00404
  1   final hearing in J&DR Court.  The -- I think the
  2   condition that you're referring to was for
  3   reestablishing visitation in January of last year
  4   after Mr. Smith moved to --
  5            MR. SMITH:  I have to object.  It sounds
  6   like she's talking about a requirement for an
  7   evaluation that is not the case in the order.
  8            THE COURT:  Okay, sir.  I'll overrule the
  9   objection at this point and allow her to testify.
 10            Is -- there was a court order in both J&D,
 11   but your position is that evaluation was done and
 12   that report filed?
 13            THE WITNESS:  That evaluation was done and
 14   that report was filed.
 15            THE COURT:  There was an additional order,
 16   I think it was Judge Millette's order -- I forget
 17   whose order it was, but a judge ordered there be an
 18   additional evaluation of some kind.  In fact --
 19            MR. SMITH:  That's incorrect.
 20            THE COURT:  Mr. Smith, don't interrupt.
 21            All right.  Can you tell me about that
 22   order or what your understanding is of that order.

00405
  1            THE WITNESS:  At the time Liam was -- had
  2   just started seeing a psychiatrist --
  3            MR. SMITH:  I object to relevance.  We have
  4   the court order available.  If we want the answer we
  5   should just introduce that.  We don't need her
  6   opinion about a court order that a judge wrote.
  7            THE COURT:  This was -- I'm talking about
  8   the evaluation that the judge ordered, Mr. Smith.
  9            MR. SMITH:  The judge did not order an
 10   evaluation.
 11            THE COURT:  He did, okay.  Your
 12   understanding is --
 13            MR. SMITH:  That's the point.  We should
 14   enter the order.  The order simply says --
 15            THE COURT:  There's one ordered in Juvenile
 16   Court?
 17            MR. SMITH:  There was one in Juvenile, yes.
 18            THE COURT:  And that was done?
 19            MR. SMITH:  Yes.
 20            THE COURT:  Okay.
 21            MR. SMITH:  But the one -- the order by
 22   Judge Millette simply states that I need to try and

00406
  1   get the child psychologist, which -- it doesn't
  2   specify who -- to submit a letter saying that
  3   visitation would be in his best interest.
  4            THE COURT:  That's my question.  Was
  5   that --
  6            MR. SMITH:  That's not an evaluation.
  7            THE COURT:  Was that ever done?
  8            MR. SMITH:  I have requested him to do
  9   that.  He has not responded in any manner at all.
 10            THE COURT:  Okay.  Do you have a copy of
 11   that order?
 12            MS. VARDY:  It's done in the judge's
 13   writing, number 2.
 14            THE COURT:  Right.  It was a handwritten
 15   order.  I remember that.  And this is the one
 16   entered January 18th, 2005.  I think that's the one
 17   you were referencing.
 18            THE WITNESS:  Yes.
 19            THE COURT:  All right.  Thank you.
 20            You have submitted your equitable
 21   distribution worksheets and they reflect your
 22   position with regards to the assets and liabilities

00407
  1   of the parties.
  2            THE WITNESS:  Uh-huh.
  3            THE COURT:  There was a court order for
  4   child support in this case --
  5            THE WITNESS:  There was.
  6            THE COURT:  -- directing Mr. Smith to pay
  7   child support.  Is he current on his child support?
  8            THE WITNESS:  No.
  9            THE COURT:  How much does he owe?  What is
 10   his arrearage in child support?
 11            MR. SMITH:  I have to object, Judge.  That
 12   requires a legal interpretation she's not qualified
 13   to give.
 14            THE COURT:  I'm asking a fact witness her
 15   understanding of the facts, Mr. Smith.  I think she,
 16   as a recipient of that child support, I think she
 17   should be able to answer the question as to how much
 18   is due.
 19            MR. SMITH:  No, she can't.  That is a legal
 20   requirement.  As the court order is not valid none
 21   is due.
 22            THE COURT:  All right, Mr. Smith --

00408
  1            MR. SMITH:  She could testify to what
  2   payments have been made.
  3            THE COURT:  Do you have a calculation sheet
  4   at all as to what's due of the arrearage at this
  5   time?
  6            MS. VARDY:  Yes, Your Honor.  It's -- it's
  7   a little over $17,000.
  8            THE COURT:  You want to show that to the
  9   witness and see if she can identify that.
 10            MS. VARDY:  Well, actually, Your Honor, it
 11   is your order.  I think perhaps we can clarify it
 12   because I do have the sheet -- when -- this is the
 13   order --
 14            When was the last time you received child
 15   support?
 16            THE WITNESS:  In July of 2004.  So it's --
 17            THE COURT:  Do you know how much per month
 18   he was directed to pay?
 19            THE WITNESS:  $823.
 20            THE COURT:  That goes back to the pendente
 21   lite order that I entered?
 22            MS. VARDY:  Yes, Your Honor.

00409
  1            THE COURT:  Back in October 2nd, 2003?
  2            THE WITNESS:  Yes.
  3            THE COURT:  And since that date, there has
  4   been no increase or decrease in the amount of child
  5   support that he has to pay?
  6            THE WITNESS:  No.
  7            THE COURT:  And I'm sorry.  You may have
  8   said it and I've forgotten.  Do you remember how
  9   much each month he's supposed to be paying?
 10            THE WITNESS:  $823.
 11            THE COURT:  $823.
 12            MR. SMITH:  I have to object again, Judge.
 13   It's impossible for her to determine.  I have filed
 14   a motion to change it.  The ruling was that that
 15   would be made later and it would be retroactive.
 16            THE COURT:  Okay.
 17            MR. SMITH:  So until that ruling is made,
 18   no determination can be made.
 19            THE COURT:  The amount of child support
 20   will be determined today, Mr. Smith.  But the amount
 21   in arrearage is an issue before the Court.
 22            MR. SMITH:  And that's correct.  You can't

00410
  1   determine the arrearage until the ruling on the
  2   lowering of the child support is made.
  3            THE COURT:  All right.  Do you have any
  4   accounting at all showing the amount of payments and
  5   the amount of arrearage or how much is due?
  6            MS. VARDY:  I have -- yes, Your Honor.
  7            THE COURT:  Let's mark this as the next
  8   exhibit on behalf of the plaintiff.
  9            (Plaintiff's Exhibit Number 6 was received
 10   into evidence.)
 11            THE COURT:  And you said the last payment
 12   was when?
 13            THE WITNESS:  July of 2004.
 14            THE COURT:  Was there -- there was no
 15   court-ordered payment that that be paid or garnished
 16   of the employer or anything like that?
 17            THE WITNESS:  No.
 18            MS. VARDY:  Your Honor, I believe the -- I
 19   entered into evidence yesterday, it would have been
 20   the first or second, our proposed equitable
 21   distribution.  The end of that you asked -- I wrote
 22   down and gave a calculation for the arrearage.

00411
  1            THE COURT:  Okay.  Let's see if we can find
  2   that.
  3            Exhibit Number 1 is the monthly income
  4   expense statement.  Exhibit Number 2 is equitable
  5   distribution worksheet.  Would it be in there, you
  6   think?
  7            MS. VARDY:  Oh, I'm sorry.  No, I
  8   calculated there -- I said the arrearage and I
  9   had --
 10            THE COURT:  I don't see a calculation with
 11   that.  It is attached to your request with regards
 12   to distribution of the escrow.  The sale of real
 13   estate.  But I don't see a breakdown of the amount
 14   of payments that have been made in the amount of
 15   arrearage.
 16            MS. VARDY:  I can do that and give that to
 17   you after lunch in that.
 18            THE COURT:  Okay.  All right.  And
 19   obviously what we're looking for is any credits
 20   Mr. Smith is entitled to in terms of payment that he
 21   has made.
 22            Ms. Smith, since July of 2004 have you ever

00412
  1   requested from him that he make his support
  2   payments?
  3            THE WITNESS:  I don't remember if I sent
  4   anything to him directly.  I know that my attorney
  5   has requested them.
  6            THE COURT:  Okay.  And in fact, we have a
  7   motion, I think, today.  I said we would take up
  8   some motions with regard to any arrearage.
  9            Do you know the figure that you have at
 10   this point or do you need to make that calculation
 11   on a sheet?
 12            MS. VARDY:  Your Honor, I believe the sheet
 13   that I gave you which gave -- we listed on the
 14   equitable-distribution sheet.
 15            THE COURT:  Well, let me see.  I have a
 16   total figure.
 17            MS. VARDY:  I have a total figure which was
 18   done the day before yesterday.
 19            THE COURT:  Oh, okay.
 20            MS. VARDY:  Okay.  So that should be the
 21   accurate one.  But I will break it down.
 22            THE COURT:  Let's see.  I don't see it.

00413
  1   You want to take a look and maybe you can find it.
  2   I just can't put my hands on it.
  3            Just so we're clear for the other exhibit
  4   we'll mark this on behalf of the plaintiff.  That
  5   pendente lite order that Mr. Smith is talking about
  6   was the January 18th, 2005.
  7            Says, Visitation with child's father,
  8   Wesley C. Smith, defendant, is suspended in
  9   accordance with the recommendations of the guardian
 10   ad litem until such time father submits a report
 11   from the child psychologist indicating that it looks
 12   like his visitation is beneficial and the Court
 13   approves an acceptable plan with such visitation
 14   submitted by the father.
 15            Mark that, make that an exhibit.
 16            That's all right, Ms. Vardy.  If you can't
 17   find that, we need to go ahead.  I'll let you go
 18   through your worksheet if you want to submit it
 19   later.
 20            Do either party have any questions based on
 21   my questions of this witness?
 22            MS. VARDY:  Your Honor, I do.  I have two

00414
  1   questions.
  2                   REDIRECT EXAMINATION
  3            BY MS. VARDY:
  4       Q.   Ms. Smith, when you decided, the two of
  5   you, you and Mr. Smith, that he would stop working,
  6   was the decision -- were there any contingencies
  7   upon the decision?  Was it a final decision, in
  8   other words?
  9       A.   We didn't set anything in stone.  We didn't
 10   make anything definite.  The -- the idea was that he
 11   might try to establish a new career where he worked
 12   from home, but there weren't any definite, you know,
 13   bounds put on it.
 14       Q.   Did there come a time when it became
 15   apparent that your salary was insufficient to
 16   support the lifestyle that you had up until the time
 17   Mr. Smith quit his job?
 18       A.   Yes.  And Mr. Smith had acknowledged that
 19   he needed to return and look for some kind of
 20   employment.
 21       Q.   And when was that?
 22       A.   I don't remember exactly.  Sometime in the

00415
  1   April/June time frame.
  2       Q.   Okay.  So it --
  3            THE COURT:  Of '02?  I want to be clear.
  4            THE WITNESS:  Of '02, yes.
  5            BY MS. VARDY:
  6       Q.   So it was still in the springtime of that
  7   year.  And prior to Mr. Smith leaving his
  8   employment, what was his salary range?
  9       A.   It was somewhere around $125,000.
 10            MR. SMITH:  I have to object.  They both
 11   know that's not correct.
 12            THE COURT:  All right.  I'll have to let
 13   her testify to her understanding of the facts,
 14   Mr. Smith.  Overrule the objection.
 15            BY MS. VARDY:
 16       Q.   Okay.  And when -- you had testified
 17   yesterday in answer to my question that you had
 18   decided there the culminating event for the
 19   separation in your mind came in September.  Had
 20   there been difficulties leading up to that?
 21       A.   For several years, yes.
 22            MS. VARDY:  Okay.  And -- okay.  Thank you.

00416
  1   That's all.
  2            THE COURT:  Mr. Smith, any questions based
  3   on my questions?
  4            MR. SMITH:  Yes, sir.
  5                   RECROSS EXAMINATION
  6            BY MR. SMITH:
  7       Q.   You stated that I did not help out with the
  8   care of Liam.  Do you recall in June of 2002 when
  9   Liam was sick and stuff coming out of both ends for
 10   a week, did you take off work to take care of him or
 11   did I take care of him?
 12       A.   I did not say that you did not help out
 13   with Liam.  I said that Liam was in daycare during
 14   that time period.
 15       Q.   Was he also not in daycare when you were
 16   not working and were not is school?
 17       A.   For a time, yes.
 18       Q.   And did you not repeatedly request me to
 19   take care of him while you stayed late or went out
 20   with friends?
 21       A.   I believe I asked you on one occasion to
 22   stay, maybe twice with him while I stayed to finish

00417
  1   a project at work.  And I would imagine I asked to
  2   spend time with friends on occasion.  I don't
  3   remember the specifics.
  4       Q.   Regards to the working relations, isn't it
  5   true that on February 11th, 2002, you wrote, You've
  6   been doing so well staying home I felt bad you
  7   couldn't plan on it indefinitely?
  8       A.   I may have written that.
  9       Q.   And didn't you also write statements to the
 10   effect of how Liam liked to spend time with me and
 11   to snuggle in bed with me in the mornings?
 12       A.   I probably did write that.
 13       Q.   As well as me cooking him breakfast?
 14       A.   Yes.
 15       Q.   And my driving an hour to drop him off at
 16   daycare that was a quarter mile out of your way on
 17   the way to work so you didn't have to be pestered
 18   with a toddler in your car for 45 minutes?
 19       A.   I certainly wouldn't characterize it that
 20   way, but he did like it when you dropped him off at
 21   daycare.
 22       Q.   And with response to the employment, you

00418
  1   had agreed to my leaving my career job.  And isn't
  2   it true that you both encouraged and documented me
  3   to pursue a very low-paying job in photography?
  4       A.   I was supportive of you trying to establish
  5   yourself in a different career, yes.
  6       Q.   Photography in particular?
  7       A.   Yes, in photography.
  8       Q.   Knowing full well it would pay very little,
  9   about like McDonald's?
 10       A.   I don't remember there being any
 11   discussions that it would be a minimum-wage job.
 12   But I did acknowledge that you probably would not be
 13   able to retain that same salary.
 14       Q.   Isn't it true you put me in contact with
 15   Kirsten's boyfriend, I believe John, who worked for
 16   the newspaper where he said the salary was about
 17   $17,000?
 18            MS. VARDY:  Your Honor, I'm going to object
 19   since my client already said it was a mutual
 20   decision and it was open-ended as to what Mr. Smith
 21   was going to do when he stayed home.  I don't think
 22   this is relevant.

00419
  1            THE COURT:  I'll sustain it.  Let's
  2   proceed.
  3            MR. SMITH:  I have to object to that.  It's
  4   clearly relevant if she's encouraging me to pursue a
  5   career at $17,000.
  6            THE COURT:  It's very irrelevant at this
  7   point, Mr. Smith.  We're talking about actions that
  8   happened in 2002.
  9            MR. SMITH:  I understand, sir.  I have to
 10   assume you already have the money divided and all of
 11   this is pointless anyway, but --
 12            THE COURT:  My point is you haven't covered
 13   anything that has happened since 2002.  Let's go
 14   ahead and proceed.
 15            MR. SMITH:  Well, respectfully, Judge, that
 16   is because the Court in three years has never
 17   bothered to correct anything of that and that's
 18   where everything goes back to.
 19            THE COURT:  I understand your position,
 20   Mr. Smith, but we need to proceed.
 21            BY MR. SMITH:
 22       Q.   Okay.  Now, you stated that correctly that

00420
  1   you were not making enough money to support us at
  2   the time.  However, did your decision to file a
  3   contested divorce make our financial situation
  4   better or worse?
  5            MS. VARDY:  Your Honor, I'm going to object
  6   to this question.
  7            THE COURT:  I sustain the objection.
  8            MS. VARDY:  Thank you.
  9            MR. SMITH:  I would have to object to that.
 10   They're asking to proceed on one-year separation
 11   after having caused me to incur $51,000 in debt
 12   defending a cause divorce.  We're talking about
 13   financial responsibility she could have -- at that
 14   point she only wanted a one-year separation, and
 15   save both of us --
 16            THE COURT:  The fact of the matter is --
 17            MR. SMITH:  -- a fortune in legal bills.
 18            THE COURT:  The fact of the matter is,
 19   Mr. Smith, is it was amended for motion for a bill
 20   of -- bill of compliant filed in this case, and that
 21   included a third count which was for separation
 22   count.  And that amended bill of complaint --

00421
  1            MR. SMITH:  I don't think that's relevant
  2   to my comment.
  3            THE COURT:  -- was filed in this case --
  4            MR. SMITH:  My comment was -- is instead of
  5   filing --
  6            THE COURT:  Let me finish what I'm trying
  7   to say.  It might well be --
  8            MR. SMITH:  Sorry.
  9            THE COURT:  -- and you may agree to that.
 10   The amended bill of compliant was filed March 21,
 11   2004, over two years ago, which include count of
 12   separation.  So this is not a new issue with regard
 13   to the one-year separation.
 14            MR. SMITH:  Yes.  But that's not my point.
 15   My point is that she filed a complete bill that had
 16   to be defended instead of simply saying, I'm going
 17   to do it on one-year separation and both parties
 18   would have saved tens of thousand in legal fees.
 19            She made a very significant negative
 20   contribution by pursuing grounds rather than simply
 21   pursuing one-year separation, which is -- if she was
 22   patient, there wouldn't be anything I could do about

00422
  1   it.  There's no legal arguments.
  2            THE COURT:  In response, on March the 17th,
  3   2004, your counsel filed an amended answer in
  4   cross-bill.  If you'll recall, your amended answer
  5   and cross-bill alleged three grounds of divorce,
  6   adultery, desertion and constructive desertion.
  7   That was yours.
  8            MR. SMITH:  Yes, sir.  How does what my
  9   counsel did relate to the fact she could have simply
 10   filed for one-year separation and avoided this?
 11            THE COURT:  I believe you accused her of
 12   expanding the cost of these proceedings by raising
 13   more than one count.  And in response you raised
 14   three counts.  She has to defend those three counts.
 15            MR. SMITH:  May I proceed and ask her some
 16   more questions?
 17            THE COURT:  I'm well aware of the status of
 18   the pleadings.
 19            BY MR. SMITH:
 20       Q.   Isn't it true that on June 10th, 2002, you
 21   stated that you were not inclined -- you stated, I'm
 22   not inclined to want to please you either with

00423
  1   regards to money or time with Liam?
  2       A.   I don't remember writing that.
  3       Q.   And also did you not state on June 10th,
  4   2002, 5:36 p.m., If you want -- wanted to have joint
  5   custody of Liam I'd be very inclined to move out and
  6   look for an apartment?
  7       A.   I don't remember writing that either.
  8       Q.   On June 13th, 2002, did you not ask me to
  9   go pick Liam up from daycare because he was sick and
 10   give him medication and take him to the doctor -- or
 11   no, not take him to the doctor, just get him
 12   medication?
 13       A.   It's a possibility.  I don't remember that,
 14   but it's a possibility.
 15       Q.   On June 20th, did you not ask me to take
 16   care of him all night because you wouldn't be back
 17   until midnight?
 18       A.   June 28th?  That again, I don't -- I don't
 19   know the specific circumstances.
 20            MS. VARDY:  Your Honor, I know Mr. Smith is
 21   not an attorney and I've tried to give some leeway,
 22   but at -- you have given us a schedule.  At the

00424
  1   moment --
  2            THE COURT:  I agree.  We need to proceed.
  3            Any final questions you'd like to ask,
  4   Mr. Smith?
  5            MR. SMITH:  Just one second.
  6            BY MR. SMITH:
  7       Q.   Did you not state on February 19th, 2002,
  8   Thanks for spending time with Liam; I know he likes
  9   it.  You're more fun than I am?
 10            MS. VARDY:  Your Honor, again, the
 11   relevance.
 12            THE COURT:  I sustain the objection.
 13            All right, Mr. Smith, you wish to testify?
 14            Ms. Smith, thank you for your testimony.
 15   You may step down.
 16            (Witness excused.)
 17            THE COURT:  You want to come up to the
 18   witness stand, Mr. Smith.  I'll ask the clerk to
 19   place you under oath for your testimony today.
 20            MR. SMITH:  I would need to be here with my
 21   documents.
 22            THE COURT:  What's that?

00425
  1            MR. SMITH:  I would need to have all my
  2   documents.
  3            THE COURT:  You need to take them up to
  4   witness stand with you, sir.
  5            MR. SMITH:  All right.
  6            THE COURT:  All right.  I'll ask the clerk
  7   to place you under oath and you can have a seat.
  8   Whereupon --
  9                      WESLEY SMITH,
 10   a witness, called for examination, having been first
 11   duly sworn, was examined and testified as follows:
 12                    DIRECT EXAMINATION
 13            THE COURT:  All right, sir.  You want to
 14   state your full name for the record.
 15            THE WITNESS:  Wesley Clay Smith.
 16            THE COURT:  All right, sir, you want to
 17   proceed.
 18            THE WITNESS:  Yes.  I would like to present
 19   a document that I found on our home computer that my
 20   wife and I used at the time in January of 2003.
 21            THE COURT:  Okay.  Show that to Ms. Vardy
 22   and see if she has any objection.

00426
  1            You want to just proffer what it is,
  2   Mr. Smith.
  3            THE WITNESS:  Yes.  It is an e-mail written
  4   from my wife to her boyfriend, Igor Bakhir, stating
  5   that she was considering moving out of the house to
  6   keep custody of Liam, which goes to contradict her
  7   statement that it had anything to do with my
  8   behavior at the house.
  9            THE COURT:  And the date of that e-mail?
 10            THE WITNESS:  I forgot already.  I'd have
 11   to see it again.  I believe it's January or February
 12   2003.  But I would have to read it again.
 13            MS. VARDY:  I have no problem with this.
 14            THE COURT:  All right.  It will be
 15   admitted.  Just give it to the clerk to mark it for
 16   admission.  Let me know what the date on it is.
 17            (Defendant's Exhibit Letter M was received
 18   into evidence.)
 19            THE CLERK:  January 6, 2003.
 20            THE WITNESS:  June 6th?
 21            THE COURT:  January 6th, 2003.
 22            THE WITNESS:  Oh, January 6th.  I thought

00427
  1   she said June.  Okay.
  2            And I have another document I found on the
  3   same computer also from my wife to Mr. Bakhir
  4   which -- it states, It's very awkward with Wes in
  5   the house, but at least he leaves me alone.  He
  6   spends all --
  7            THE COURT:  You can't read it, Mr. Smith,
  8   if there's an objection to it.  You want to show it
  9   to Ms. Vardy and see if she has any objection to
 10   that e-mail.
 11            MS. VARDY:  Your Honor, I guess I don't see
 12   the relevance of these to the case at hand.
 13            THE COURT:  Okay.  You want to proffer the
 14   relevance, Mr. Smith.
 15            THE WITNESS:  Yes, sir.  I would like the
 16   document back.
 17            THE COURT:  All right.  You want to show it
 18   to him.
 19            THE WITNESS:  Yes --
 20            THE COURT:  How is this e-mail relevant?
 21            THE WITNESS:  It is relevant because my
 22   wife has claimed that I was abusive while -- during

00428
  1   this time period, and here she clearly states that I
  2   go out of my way to avoid her and not have anything
  3   to do with her.  And she goes on to document she was
  4   abusive by taking my router for my computer, going
  5   through my bedroom door again.  And --
  6            MS. VARDY:  I'm going to object, Your
  7   Honor.  Since he's skipping --
  8            THE WITNESS:  But that's the relevance.
  9            THE COURT:  Okay.  I think it's relevant
 10   and I overrule the objection and allow it to be
 11   admitted.
 12            (Defendant's Exhibit Letter P was received
 13   into evidence.)
 14            THE WITNESS:  All right.  And again states
 15   that she's worried to maintain custody she'll have
 16   to move out.
 17            I have another document from March 5th,
 18   2003, found on the same computer that was written to
 19   Kirsten Knight, a coworker of hers, where she
 20   describes the court order in J&DR Court.
 21            And instead of saying something appropriate
 22   like, It was a good ruling for our son, or it's

00429
  1   something we can live with or work together, she
  2   states, quote, I came out of it with the upper hand.
  3   Which shows her attitude towards settling custody.
  4            THE COURT:  I don't think that would be
  5   relevant, Mr. Smith.  I would sustain any objection
  6   to that.
  7            MS. VARDY:  Thank you, Your Honor.  And
  8   since I haven't seen the document either I do object
  9   to it.
 10            THE WITNESS:  And I would still like that
 11   in the court record because I believe it's clearly
 12   relevant that she's focused on what's good for her,
 13   not for our son.
 14            THE COURT:  You can file it, Mr. Smith.
 15            THE WITNESS:  Yes, sir.
 16            THE COURT:  That's fine.
 17            THE WITNESS:  And I would like to introduce
 18   another document there.  This was relevant because
 19   my wife has repeatedly stated that I was abusive by
 20   saying she had a mental illness and --
 21            THE COURT:  What is the date on it?  And
 22   what is it, an e-mail, letter what do you have?

00430
  1            THE WITNESS:  It is an e-mail.  On
  2   December 19th, 2000, to her friend Lisa.  And it is
  3   regarding her mother's visit, who in my opinion
  4   clearly has much more severe symptoms than my wife,
  5   and a document that me and her mother got along
  6   well.
  7            THE COURT:  It should be noted that these
  8   e-mails all have highlighting on it.  I figure
  9   that's something you've added to them, correct?
 10            THE WITNESS:  Yes, sir.
 11            THE COURT:  I noticed you didn't highlight
 12   all of them.
 13            THE WITNESS:  No, sir.
 14            THE COURT:  Okay.  And that is -- that's
 15   your highlighting?
 16            THE WITNESS:  Yes, sir.  That would not be
 17   any indication on her part for anything.
 18            THE COURT:  Okay.  All right.  And I'm not
 19   sure an e-mail from 2000 would really be relevant --
 20            MS. VARDY:  Your Honor, I'm going to
 21   object --
 22            THE COURT:  -- to the proceeding so I

00431
  1   sustain the objection to that e-mail.
  2            THE WITNESS:  I would like to have it filed
  3   anyway.
  4            THE COURT:  You may file it.
  5            THE WITNESS:  And I have another one.
  6   Similar situation.  I found it on the computer.
  7            THE COURT:  Date and nature of it.
  8            THE WITNESS:  June 20th, 2001.
  9            THE COURT:  E-mail?
 10            THE WITNESS:  E-mail to a friend of hers,
 11   Paula -- relative, I believe.
 12            THE COURT:  From whom to whom?
 13            THE WITNESS:  From my wife to Paula.
 14            THE COURT:  Okay.  And the relevance?
 15            THE WITNESS:  It shows her behavior which
 16   is problematic with me and would still be a problem
 17   with Liam.  And she states that she -- she goes to
 18   either extreme.  She either totally sieverts
 19   (phonetic) her desires or she's yelling and
 20   screaming and that has clearly been my experience.
 21            THE COURT:  Any objection to the e-mail?
 22            MS. VARDY:  Yes, Your Honor.  I'm objecting

00432
  1   to relevance to the date and also having not had a
  2   chance to read it --
  3            THE COURT:  I really have to look at that
  4   before I can tell if it's relevant or not.  There
  5   has been testimony that she testified to that the
  6   marriage had been breaking down well before
  7   September of '02.
  8            THE WITNESS:  And also the evaluation, the
  9   J&DR Court, the psychiatrist did mention the
 10   tendency of my wife to flip-flop that way which is
 11   very confusing to Liam.
 12            MS. VARDY:  Your Honor, I'm going to
 13   object.
 14            THE COURT:  I sustain the objection.  You
 15   can't testify to what someone else has testified to
 16   or report it.
 17            THE WITNESS:  But that's why it's relevant.
 18   It confirms that report.
 19            I would also like to submit --
 20            THE COURT:  Wait a minute before you get
 21   there.  I don't see how this is relevant.  She's
 22   talking about herself.

00433
  1            THE WITNESS:  Yes.  My wife flip-flops.
  2            THE COURT:  How does that show her
  3   relationship with you?
  4            THE WITNESS:  It's problematic to have
  5   somebody who will tell you something is okay one day
  6   and go ballistic on exactly the same topic on the
  7   next.
  8            THE COURT:  Okay.  She says, Thanks for
  9   your encouraging words with Wes.  Finding firm, but
 10   gentle to assert our own needs has been a constant
 11   struggle in our marriage.  I find that I tend to
 12   either extreme.  I totally sievert my desires where
 13   I'm yelling at Wes so learning this is taking both
 14   of us a lot of effort.
 15            I think about your point about figuring out
 16   what you want and need is interesting.  I do think
 17   you're right.  A lot of times you have to get what
 18   you don't want first before you figure it out.
 19   We're doing better.  This last episode surprisingly
 20   seemed to have changed the dynamics of the
 21   situation --
 22            THE WITNESS:  Judge, I must object.  I

00434
  1   don't think it's necessary to read the whole
  2   document in.
  3            THE COURT:  You only want me to read your
  4   highlighted portion.  But when you introduce the
  5   whole document, Mr. Smith, I think I have the right
  6   to read the whole thing.
  7            THE WITNESS:  You can read it, but I don't
  8   think you need to read it verbally into the record.
  9            THE COURT:  I think I do.
 10            We're reading some relationship self-help
 11   book.  A lot of it is garbage, but I do think we're
 12   learning some useful tactics for discussion and
 13   realizing where some of the difficulties in our
 14   communication come from.
 15            THE WITNESS:  Judge, can I understand,
 16   you're going to give me more time that you're
 17   taking?
 18            THE COURT:  So it indicates, I think it is
 19   relevant to show the relationship between the
 20   parties prior to her allegation of separation of
 21   September of '02.  So therefore I'll admit the
 22   document.

00435
  1            (Defendant's Exhibit Letter Q was received
  2   into evidence.)
  3            THE WITNESS:  It's also relevant to show
  4   she has a difficult time managing an even temper
  5   on --
  6            THE COURT:  It does reflect on both of your
  7   relationships, correct?  Not just hers.  The
  8   difficulty in communication --
  9            THE WITNESS:  Well, it's an admission of
 10   her conduct.  Would be --
 11            THE COURT:  In terms of her relationship
 12   with you.
 13            THE WITNESS:  Anyway.  Next document is a
 14   list of legal fees that I paid up through 4/29/04.
 15   I would like to submit that.
 16            THE COURT:  All right.  Any objection to
 17   this documentation on attorney fees?
 18            MS. VARDY:  I'd like to see it, Your Honor.
 19            Your Honor, I have no objection.
 20            THE COURT:  All right.  Will be admitted.
 21            THE WITNESS:  And it shows about $51,000
 22   that I paid in legal fees.

00436
  1            MS. VARDY:  Can I know what number that
  2   we're up to in exhibits?
  3            THE COURT:  This is Exhibit P.
  4   Defendant's P.  I'm sorry.  It's Q.
  5            THE WITNESS:  And I have a document my wife
  6   sent to me in which she states she has an urge to
  7   drive the car into the tree, which she has --
  8            THE COURT:  Do you have the date and nature
  9   of the item?
 10            THE WITNESS:  October 31st, 2001.  She had
 11   made several verbal statements about wanting to
 12   commit suicide and kill Liam.  And this is one of
 13   the few I found in writing.
 14            THE COURT:  All right.  And that says that
 15   she is going to commit suicide and kill Liam?
 16            THE WITNESS:  It doesn't mention Liam, but
 17   it mentions she has an urge to do it.
 18            THE COURT:  Well, Mr. Smith, I don't want
 19   you to exaggerate what the document says.  I want
 20   you to tell the Court -- proffer to the Court why
 21   you're offering that document.  But you needn't
 22   exaggerate it.

00437
  1            THE WITNESS:  I'm not exaggerating it.
  2            THE COURT:  Let's limit ourselves to what
  3   the facts are in this case.
  4            THE WITNESS:  I'm saying the document says
  5   she feels the urge.  It confirms the verbal
  6   discussions we had where she indicates plans.  And
  7   took it as an indication that she has --
  8            THE COURT:  I don't want to know how you
  9   took it.  I simply want to know what the document
 10   says because that's what you're offering at this
 11   time, not how you feel about it.
 12            THE WITNESS:  All right.
 13            MS. VARDY:  May I see the document?
 14            THE COURT:  All right.
 15            MS. VARDY:  I'm not sure what the one
 16   before this was about.  I object since I don't know
 17   what the --
 18            THE COURT:  All right.  I won't know its
 19   relevance unless I look at it, quite frankly.  So
 20   I'll take a look at it and rule on it.
 21            I'll overrule the objection and allow for
 22   it to be admitted.  I'll note for the record the

00438
  1   bias.
  2            It says, I appreciate you're new at this.
  3   It stresses me out to talk about it.  I get this,
  4   open parentheses, controllable, close parentheses,
  5   to drive a car into the tree.  I don't want to cause
  6   you a lot of grief so whatever I do I won't mention
  7   it.  I feel tired today, probably a hangover.
  8   Hopefully you can have a good time tonight.  Love,
  9   Cheri.
 10            He goes on to write, I hope you're doing
 11   okay.  I think discussing Jones makes both of us
 12   tense.  I understand your desire to still associate
 13   with your parents.  I don't think I have a right to
 14   prevent that.
 15            At the same time associating with them or
 16   doing nice things for them if they won't do for me
 17   really annoys me.  You saw how much just the Utah
 18   mail bugged me.  The idea of sending pictures after
 19   they made such a fuss about the pictures just makes
 20   me angry.
 21            It will be introduced.
 22            (Defendant's Exhibit Letter R was received

00439
  1   into evidence.)
  2            THE WITNESS:  And I have another document.
  3   November 27th, 2001.  That indicates she's stressed
  4   out.
  5            THE COURT:  E-mail, letter, what's the
  6   nature?
  7            THE WITNESS:  E-mail from her to me.
  8            THE COURT:  All right.
  9            THE WITNESS:  Stress is a significant
 10   problem and the cause of the case, which was also
 11   mentioned in the report.  And also another one from
 12   September 24th, 2001 --
 13            THE COURT:  We have to do one at a time.
 14   Show them to Ms. Vardy.
 15            MS. VARDY:  Your Honor, I don't see the
 16   relevance.
 17            THE COURT:  Okay.  I'll take a look at it.
 18            I sustain the objection.  It will be part
 19   of the record.  Make it -- mark it for the purposes
 20   of identification.
 21            Anything else you want to testify to,
 22   Mr. Smith?

00440
  1            THE WITNESS:  Oh, certainly.  I have
  2   another e-mail message from my wife to me,
  3   August 21st, 2001, where she states that she had
  4   been holding Liam's arm so tight it was swollen and
  5   purple and hoped she didn't leave bruises.
  6            THE COURT:  And the purpose of this?
  7            THE WITNESS:  It shows that she has
  8   difficulty dealing with him when she's stressed.  My
  9   wife has the same problems with Liam that she does
 10   with me other than financial.
 11            MS. VARDY:  Your Honor, I'm going to ask
 12   that this whole thing be read into the record.  I
 13   think it is relevant.
 14            THE COURT:  Okay.  You have no objection to
 15   it?
 16            MS. VARDY:  I don't have an objection
 17   except for the whole paragraph --
 18            THE COURT:  All right.  It will be
 19   admitted.
 20            (Defendant's Exhibit Letter T was received
 21   into evidence.)
 22            THE WITNESS:  All right.  My wife is -- or

00441
  1   at least Ms. Vardy has repeatedly claimed during
  2   the --
  3            THE COURT:  Don't pluralize, Mr. Smith.
  4   Just tell me what it is you want to offer at this
  5   point.
  6            THE WITNESS:  I have a document showing I
  7   was an outstanding volunteer at the Rainbow Center
  8   where they do therapeutic riding for disabled
  9   children.
 10            THE COURT:  Any objection, Ms. Vardy?
 11            MS. VARDY:  No, Your Honor.
 12            THE COURT:  It will be admitted.
 13            (Defendant's Exhibit Letter U was received
 14   into evidence.)
 15            THE WITNESS:  Do you have a time frame on
 16   that?
 17            THE CLERK:  May 15, '04.
 18            THE COURT:  May 15 '04.
 19            THE WITNESS:  Yes.  And I would like to
 20   state that I helped them taking pictures of the
 21   children riding the horses.  And I did that for a
 22   couple of years, actually.

00442
  1            I would also like to submit a letter or
  2   history that my mother wrote 20-some years ago, I
  3   guess, which documents that in grade school I
  4   volunteered and helped with disabled children in
  5   grade school.
  6            THE COURT:  Any objection to these?
  7            MS. VARDY:  Yes, Your Honor.  I don't see
  8   the relevance.
  9            THE COURT:  Sustain the objection.
 10            MS. VARDY:  And it's hearsay.
 11            THE WITNESS:  The relevance is that
 12   Ms. Vardy has claimed I was ashamed of my son
 13   because he has Down Syndrome when prior to having a
 14   child with Down Syndrome I was volunteering and
 15   helping with them.  I had also participated in
 16   Special Olympics.  I think that goes to show that
 17   her claim is kind of meritless.
 18            THE COURT:  Your wife testified that you
 19   did assist with Liam.
 20            THE WITNESS:  I'd still like it filed.
 21            THE COURT:  You can file it.
 22            THE WITNESS:  And I have a letter from --

00443
  1   e-mail from my wife to me, March 13, 2000, which she
  2   admits to having various emotional problems.  Unable
  3   to admit -- internalize compliments, low
  4   self-esteem.  Feeling that people that love me are
  5   out to hurt me, being suspicious of their motives.
  6   Obsession of being independent, getting angry and
  7   being defensive.
  8            MS. VARDY:  Your Honor --
  9            THE WITNESS:  Worst of all when very
 10   stressed and triggered I lash out at the people I
 11   love, yell, scream and say hurtful things.
 12            And she also requests that both of us have
 13   evaluations done.  And she states she's sorry she
 14   yelled at me.  I've been a wonderful husband and
 15   father.
 16            MS. VARDY:  I'm going to object to the fact
 17   that Mr. Smith is reading from it, paraphrasing it
 18   into --
 19            THE COURT:  Yeah.  I sustain the objection.
 20   Just tell us what it is, Mr. Smith.  Get the
 21   scenario --
 22            THE WITNESS:  It documents my wife

00444
  1   admitting to her emotional problems.
  2            THE COURT:  All right.  Any objection to
  3   this, Ms. Vardy?
  4            MS. VARDY:  May I see it?
  5            THE WITNESS:  And that she wants
  6   evaluations done.
  7            THE COURT:  And that was in '04, you said,
  8   or '02?
  9            THE WITNESS:  I have ADD.  Two seconds
 10   later it's gone.
 11            MS. VARDY:  March 13th, 2000.
 12            THE COURT:  2000 and?
 13            MS. VARDY:  2000.  Just 2000.
 14            THE COURT:  Any objection, Ms. Vardy?
 15            MS. VARDY:  Your Honor, I object to
 16   relevance and -- I'm trying to get through the whole
 17   thing.  It's a -- I don't know who wrote -- someone
 18   wrote in and I don't know if that's my client or
 19   Mr. Smith.
 20            THE COURT:  Can you identify the writing in
 21   it.
 22            THE WITNESS:  Anything other than printed

00445
  1   text would be mine.
  2            THE COURT:  All right.  Any objection to
  3   the balance of it, then?
  4            MS. VARDY:  No, Your Honor.
  5            THE COURT:  I'll take it without
  6   reservation.  It will be marked as the next exhibit
  7   on behalf of the defendant.
  8            (Defendant's Exhibit Letter W was received
  9   into evidence.)
 10            THE WITNESS:  I would like to go over and
 11   retrieve some more documents.
 12            THE COURT:  All right.
 13            THE WITNESS:  Thank you.
 14            THE COURT:  Mr. Smith, this particular
 15   e-mail makes reference to potential mental illness.
 16   You did have psychological evaluations performed.
 17   Did you want to offer those psychological
 18   evaluations in this case?
 19            THE WITNESS:  We did not get them done.
 20   She drug her feet.
 21            THE COURT:  I beg your pardon?
 22            THE WITNESS:  We did not get anything done

00446
  1   as a result of that conversation.  The one we had in
  2   JDR was a rushed one that the guy specifically
  3   stated that he would not be looking for ruling in or
  4   around the particular types of mental illness --
  5            THE COURT:  You don't intend to offer those
  6   evaluations?
  7            THE WITNESS:  They were not performed as a
  8   result of that.
  9            THE COURT:  There were not written
 10   evaluations?
 11            THE WITNESS:  Not as a result of that.  The
 12   only thing approaching an evaluation, we have one of
 13   me which was done as part of the J&DR and one of
 14   both of us that --
 15            THE COURT:  Do you want to offer the one of
 16   you?  Let's take them one at a time.  Do you want to
 17   offer the one of you?  Yes or no.
 18            THE WITNESS:  Yes, I would.
 19            THE COURT:  All right.  Do you have that?
 20   Go ahead and offer that if you'd like.  Do you want
 21   to offer the one of both of you?
 22            THE WITNESS:  It would take me a while to

00447
  1   find them, but --
  2            THE COURT:  Well, that's all right.  It's
  3   your opportunity to present evidence.  If you don't
  4   want to offer them, that's fine.
  5            THE WITNESS:  No, I would.
  6            THE COURT:  References have been made to
  7   them on repeated occasions.  I didn't know if either
  8   part wanted to offer those for the Court's
  9   consideration.
 10            MS. VARDY:  Your Honor, in our pendente
 11   lite hearing I proffered asking the Court if the
 12   Court would consider them and you ruled no.
 13            THE COURT:  Said what?
 14            MS. VARDY:  I had asked at that point
 15   whether the evaluations would be allowed and you
 16   said no.
 17            THE COURT:  I don't ever remember saying
 18   that.  And I don't ever remember seeing them --
 19            THE WITNESS:  It was ruled not submitted
 20   and I have them in the file and the other one is in
 21   the file.  I submitted it with the GAL.
 22            THE COURT:  I don't have either one of them

00448
  1   as part of this proceeding today.
  2            MS. VARDY:  I know that I put copies in the
  3   file before the pendente lite hearing.
  4            THE COURT:  If you want to offer them I'd
  5   be glad to consider them.  But I think you're going
  6   to have to offer them today because the ruling in
  7   the pendente lite hearing is not -- is not before
  8   the Court.
  9            I'll be honest with you, I've looked at
 10   those orders.  I don't think I've ever seen that
 11   exhibit.  It's not admitted.  But -- by court order.
 12   But in any event the question is simply whether you
 13   want to offer them as part of this proceeding.  I'll
 14   leave it up to both of you if you want to offer
 15   those.  And whether or not you have any objection to
 16   it.
 17            THE WITNESS:  I do object to it because
 18   it's given as a complete and thoroughly evaluation.
 19            THE COURT:  They haven't been offered yet,
 20   Mr. Smith.  So there's nothing to objection --
 21   object.  I'll wait to see if either party wants to
 22   offer it.

00449
  1            THE WITNESS:  Okay.  I'd like to submit
  2   some photos.
  3            THE COURT:  Dates and who took them, that
  4   sort of thing.  Some foundation for the photos.
  5            THE WITNESS:  This would have been taken in
  6   the Prince William Hospital by my wife when Liam was
  7   an infant.
  8            THE COURT:  And the purpose of that?
  9            THE WITNESS:  It shows that I was involved
 10   with him as an infant.  In fact --
 11            THE COURT:  I don't think there's any
 12   dispute to that, Mr. --
 13            THE WITNESS:  In fact, I was the first one
 14   to hold him, not my wife.  And I showed up every day
 15   to feed him and change him.
 16            THE COURT:  Well, I think you did raise the
 17   issue yesterday whether or not you're the father, so
 18   if you want to offer those as additional proof of
 19   that, your role, then I'll be glad to accept them.
 20            THE WITNESS:  Yes, sir.
 21            MS. VARDY:  I have no objections.
 22            THE COURT:  All right.  Photos as a group.

00450
  1            (Defendant's Exhibit Letter X was received
  2   into evidence.)
  3            THE WITNESS:  And these are going to be
  4   various photos taken of me and Liam visiting
  5   different places.  Primarily taken by my wife.  This
  6   last one is a photo of me and Liam at his daycare
  7   party, which was taken by the staff because my wife
  8   did not attend.  Am I allowed to just show you some
  9   photos without having the Court keep them?
 10            THE COURT:  Well, I think we're going to
 11   have to keep them in the record.
 12            THE WITNESS:  Well, they're not anything
 13   controversial.  Just more --
 14            THE COURT:  I think once they're admitted
 15   as an exhibit for purposes of the record they'll
 16   have to stay in.
 17            THE WITNESS:  Well, I don't know if I want
 18   to give up my photos.
 19            MS. VARDY:  Your Honor, I don't know that
 20   we have contended in any way that Liam has fun with
 21   his father.  I have no objection to this.  But I
 22   guess what I'm saying is I don't see any reason for

00451
  1   Mr. Smith to give up his photos because we have
  2   no --
  3            THE COURT:  Well, he has offered this
  4   exhibit before.  I'll let him decide whether he
  5   wants to offer the others.
  6            THE WITNESS:  I also have a letter from
  7   Dr. Serlin, who is seeing Liam.  He has had problems
  8   with bowel movements for years and Dr. Serlin has
  9   been handling that.  And in this letter he documents
 10   that Liam is able to pass stool when he's in my
 11   care, which is different than when he's in the care
 12   of his mother.
 13            MS. VARDY:  Your Honor, this is hearsay
 14   and --
 15            THE COURT:  Sustain the objection.
 16            MS. VARDY:  -- we're going to put in the
 17   medical records.
 18            THE WITNESS:  I would like it filed.
 19            THE COURT:  All right.  You may mark it for
 20   purpose of the record.
 21            THE WITNESS:  I would also like to
 22   introduce a letter from Mary Kay Yates to refute the

00452
  1   claims made by Ms. Vardy.  It documents my taking
  2   Liam to speech therapy on a weekly basis, driving
  3   from Woodbridge north of Manassas and then taking
  4   him on to school.
  5            THE COURT:  Any objection?
  6            MS. VARDY:  Yes, Your Honor.  It's hearsay
  7   and it's also not relevant.
  8            THE COURT:  Sustain the objection.
  9            THE WITNESS:  How is it not relevant when
 10   you argue I didn't participate in speech therapy?
 11            THE COURT:  Sustain the objection,
 12   Mr. Smith.
 13            THE WITNESS:  I would like that filed.
 14            I would also like to point out that it was
 15   written at the request of Ms. Smith, not me.  So I'm
 16   surprised to --
 17            THE COURT:  Mr. Smith, I've sustained the
 18   objection.  You need to proceed.
 19            THE WITNESS:  All right.  I would like to
 20   submit some photos of my current residence and where
 21   I think Liam would be most comfortable.  A lot of
 22   these I have two copies.  I'll let you keep one,

00453
  1   Loretta.
  2             These photos show my brother's house on
  3   five acres and with cows across the street.  Liam
  4   just loves cows.  It's a great place to raise
  5   children.  He has two cousins that live there.  They
  6   have fruit trees with cherries and apples.  They
  7   have birds building nests in the yard.  Kids catch
  8   caterpillars which turn into butterflies.  They have
  9   bonfires.  They go sledding.
 10            As far as a place to raise a child, it
 11   would be a wonderful place for him.  If we could
 12   get -- somehow arrange to get his mother to move
 13   close enough so he could spend time with both of us.
 14            THE COURT:  Do you really think that's
 15   going to happen, Mr. Smith?
 16            THE WITNESS:  No, sir.  I don't imagine
 17   that this Court will rule anything in my son's best
 18   interest, but it's my job to present what I think is
 19   best.
 20            THE COURT:  Are you telling me you want me
 21   to order her to move close to you; is that what
 22   you're telling me?

00454
  1            THE WITNESS:  If it was possible, but --
  2   what I would hope is that eventually my wife would
  3   be willing to work together to do what is best for
  4   our son and then be in a better environment.
  5            And the purpose she got her MBA was so that
  6   she could get a job anywhere we chose to live.  That
  7   she might be willing to looking for a job down there
  8   so Liam could have a better environment.  And she
  9   might like it, too.  No traffic to deal with.  It's
 10   a pleasant place.
 11            But anyway.  That's what I'm submitting the
 12   photos of.  And the kids like the -- my son loves
 13   horses and trampolines.  And I have other pictures
 14   of him participating in activities with his cousins.
 15   He would really enjoy to be able to spend time with
 16   them again.
 17            If I did manage to convince the Court or my
 18   wife to let Liam live down there, he would never be
 19   in daycare again because I would be able to take
 20   care of him.  And also my brother's wife because she
 21   stays at home to take care of the kids, so he would
 22   not be in daycare.

00455
  1            In terms of visitation that would work out
  2   well because if I saw him during the day, then when
  3   my wife got done with work at night I would
  4   certainly not have any objections to him spending
  5   time with her then.  I think the best arrangement
  6   would be if Liam could spend time with both of us
  7   everyday.
  8            And this last picture isn't taken at my
  9   brother's house.  It's taken at my mother's house.
 10   So that's just relevant for him playing with the
 11   cousins.  Here's a copy for the Court and one for
 12   Ms. Vardy.  She can keep one set.
 13            MS. VARDY:  I have no problem.
 14            THE COURT:  They'll be admitted as proof.
 15            (Defendant's Exhibit Letter AA was received
 16   into evidence.)
 17            THE WITNESS:  And I would like to submit
 18   photos of the previous apartment that I rented in
 19   Woodbridge and Liam's room.  And the school which
 20   was just across the street, which was an identical
 21   copy of the one that he had been to previously, so
 22   he was familiar with the floor plan and would have

00456
  1   been comfortable.
  2            And this was the one the county would send
  3   the special ed students to because it was a problem
  4   previously they wouldn't be bused.  And I wanted to
  5   show that I had selected a perfect location for him
  6   in terms of the special ed school.  He had his own
  7   room, his own bathroom.  And Mr. Fahy refused to
  8   even come take a look at it.
  9            MS. VARDY:  Your Honor, I'm going to object
 10   to the last remark as hearsay and to the pictures as
 11   relevance.  He doesn't live there anymore.
 12            THE COURT:  Sustain the objection.
 13            THE WITNESS:  Well, I would state, then,
 14   Mr. Fahy never came to my apartment.  I would like
 15   that filed.
 16            Oh, you had mentioned wanting an unmarked
 17   copy of the will.  If you'd rather have this one
 18   instead.
 19            THE COURT:  It's already an exhibit,
 20   Mr. Smith.
 21            THE WITNESS:  Okay.  I would also like to
 22   submit copies of photos that I've posted on my

00457
  1   website of activities that I've done with Liam.
  2            And one good thing about posting them on
  3   the website is that his mother knows what we've
  4   done, where we've been, unlike her where she never
  5   tells me anything about what they've been doing
  6   whatsoever, except for the rare occasion she might
  7   mention they went to Utah.  But if he loses a tooth
  8   or anything else I don't hear of it.
  9            But I do post them on the website without
 10   commentary other than the place so that she can
 11   enjoy them if she wishes.  And it does show the --
 12   some of the activities that Liam and I enjoy
 13   together.
 14            THE COURT:  Any objection?
 15            MS. VARDY:  I have no objections, Your
 16   Honor --
 17            THE COURT:  Admitted.
 18            MS. VARDY:  -- except again to relevance.
 19            (Defendant's Exhibit Letter CC was received
 20   into evidence.)
 21            THE WITNESS:  Well, considering that she
 22   has argued that visitation --

00458
  1            THE COURT:  It has been admitted,
  2   Mr. Smith.
  3            THE WITNESS:  Well, I can still testify
  4   comments, can I not?
  5            THE COURT:  No, you can't comment on
  6   whether or not they should be admitted when they've
  7   already been admitted.
  8            THE WITNESS:  But can I testify I have
  9   chosen appropriate activities for visitation that he
 10   very much enjoys?
 11            THE COURT:  Certainly.
 12            THE WITNESS:  All right.  I would also like
 13   to submit some audio recordings --
 14            MS. VARDY:  I would object to that.
 15            THE COURT:  You want to identify those, lay
 16   some foundation for them.
 17            THE WITNESS:  Yes.  The actual CDs, I'll
 18   have to go get them.  They're over there.  But I had
 19   made a lot of audio recordings particularly during
 20   the time period from the filing of the protective
 21   order until my wife moved out.
 22            And also at exchanges because my wife has a

00459
  1   track record of making false accusations.  And once
  2   I figured out the courts were overly anxious to
  3   believe the mother --
  4            MS. VARDY:  Your Honor --
  5            THE WITNESS:  -- and disbelieve the father
  6   I found it best to protect myself.
  7            MS. VARDY:  -- I'm going to object to this.
  8            THE COURT:  What are they offered for
  9   today, Mr. Smith?
 10            THE WITNESS:  They demonstrate that my
 11   wife -- for her they demonstrate that she did not
 12   respect the wishes of Liam to spend time with me.
 13   Did not follow the court order.  And she even went
 14   so far as to stating things like, I know you want to
 15   stay with Wes, but I won't let you.
 16            And saying how she's going to call the
 17   police because he came into my bedroom while she was
 18   on a phone call.  I can't say how that hurt anything
 19   at all.  That just shows clearly poor judgment, a
 20   lack of concern for his feelings.
 21            And I also like where she states it is not
 22   in her best interest for unsupervised visitation.  I

00460
  1   think that goes clearly to how she abused this.
  2   She's not thinking about Liam, she's thinking about
  3   control.
  4            THE COURT:  Do you have those you want to
  5   offer at this time?  We'll go ahead and mark them
  6   and see if Ms. Vardy has any objection.
  7            THE WITNESS:  Yes.  And that's the first
  8   set.  Should I -- I have four.  Should I continue
  9   the four or should I go grab the --
 10            THE COURT:  You can proffer what you're
 11   offering them for and see if Ms. Vardy has any
 12   objection.
 13            THE WITNESS:  Okay.  And the second set is
 14   a recording of Liam to demonstrate how attached he
 15   was to me.  He's asking for hugs and snuggles and
 16   asking me to play cars, which in total shows how
 17   very much he was used to spending time with me
 18   because when you get, like, ten a day, play cars,
 19   play cars.
 20            And also that he would request me and my
 21   wife to shut the door.  He wanted the door shut and
 22   locked and that is one of the issues that my wife

00461
  1   called the police on.  And my son had said he didn't
  2   understand.  He thought if he locked the door that
  3   kept me in the room and I had to play with him
  4   longer.
  5            Even though you just turn the doorknob and
  6   it opens and certainly I was smart enough to know
  7   how to unlock it anyway.  He repeatedly would
  8   request the door be shut and locked because he
  9   thought that kept me in there.  And he started that
 10   after the protective order was filed.  He really did
 11   not --
 12            MS. VARDY:  Your Honor --
 13            THE WITNESS:  -- about being separated.
 14            MS. VARDY:  I'm going to object to that
 15   statement.
 16            THE COURT:  It's a hearsay objection.  I'll
 17   sustain your objection.  That would not be
 18   admissible, Mr. Smith.
 19            THE WITNESS:  Well, instead of hearsay I
 20   will rephrase it.  After the protective order was
 21   filed Liam started a new behavior trying to lock the
 22   door to keep me in the room.

00462
  1            THE COURT:  It's still hearsay, Mr. Smith.
  2   I'll sustain the objection.
  3            THE WITNESS:  And then I have another one
  4   where my wife in front of Liam says, You are a sick
  5   man, Wes.  And the recording of me and Liam playing
  6   while we're waiting for the police.  And Liam
  7   specifically stating, Shut door, lock door.
  8            And it shows my wife didn't understand what
  9   Liam wanted.  She kept blaming me for the door being
 10   locked, but it was him doing it and she should have
 11   known him well enough that he liked playing with me
 12   and that indicated that he --
 13            MS. VARDY:  Your Honor, I'm going to object
 14   to --
 15            THE COURT:  I'll sustain the objection.  I
 16   don't think it's admissible.
 17            THE WITNESS:  It's an issue because if a
 18   custodial parent is calling the police because the
 19   child wants to spend time with the noncustodial
 20   parent, that directly speaks to whether or not she's
 21   supporting the relationship.  Was it reasonable?  I
 22   don't think so.  Not with the child asking to spend

00463
  1   time -- the child --
  2            THE COURT:  I've ruled on it, Mr. Smith.  I
  3   sustain the objection.
  4            THE WITNESS:  All right.  Well, let me grab
  5   the CDs and we will --
  6            MS. VARDY:  Your Honor, I'm going to object
  7   on several grounds.  First of all, Mr. Smith said
  8   these were recordings.  I presume having seen him
  9   with his tape recorder that these are tape
 10   recordings that he has now transferred onto a CD.
 11            I have no idea as to their -- his editing
 12   of them, their context.  Also I do not believe my
 13   client gave him permission to tape record the
 14   conversations.  But primarily my objection is that
 15   he has obviously done some editing if he has moved
 16   them from a tape recorder, which also could be
 17   edited to a CD.
 18            THE WITNESS:  I would like to state that
 19   permission is not required by Virginia law.  I
 20   didn't have to perform.  And as you and your client
 21   stated, you're well aware that I was taping
 22   everything that happened around her.

00464
  1            And also I will state for the Court that I
  2   certainly did not edit any of these other than
  3   cutting them to length.  I certainly did not edit
  4   them to say what I wanted them to say.  They are an
  5   accurate representation of what was said at the
  6   time.
  7            THE COURT:  All right, sir.  I'm going to
  8   sustain the objections to the recordings.  I think
  9   it is an issue first of editing; second, a
 10   permission issue; thirdly, hearsay issue; fourth,
 11   relevance issue.  And for all of those grounds I'll
 12   sustain the objection.
 13            THE WITNESS:  And I will object to your
 14   ruling.  It's not hearsay if it's a recording of the
 15   actual thing.
 16            THE COURT:  From my understanding they
 17   include Liam's statements.  That would clearly be
 18   hearsay.
 19            THE WITNESS:  No, I want to prove she
 20   actually said it.
 21            THE COURT:  Okay, sir.  I'm not going to
 22   argue with you.  I've ruled.  You can go ahead and

00465
  1   leave them with the clerk if you'd like to.
  2            THE WITNESS:  Yes, I would.  I would like
  3   them included in the file.
  4            I would also like to provide a CD with
  5   excerpts from the session with Ruth Welsh and
  6   with -- both Ruth Welsh and my wife state that she
  7   has uncontrollable rage.
  8            THE COURT:  These are sessions with a
  9   mental-health counselor?
 10            THE WITNESS:  It is a session with both of
 11   us.  I did not tape it.  The tape was provided to me
 12   after the fact.
 13            THE COURT:  And who provided you the tape,
 14   sir?
 15            THE WITNESS:  Ruth Welsh and my wife.  They
 16   sent it with us and we were supposed to listen to it
 17   and think about it.  They're certainly no privacy --
 18            MS. VARDY:  I'm objecting to it, Your
 19   Honor, on the grounds that even though the parties
 20   were there it was still to be a respected privacy
 21   conversation.
 22            THE COURT:  It still constitutes hearsay.

00466
  1   I don't see how the --
  2            MS. VARDY:  That was my second one.
  3            THE COURT:  I don't see how it would be
  4   admissible.
  5            THE WITNESS:  Not from the point --
  6            THE COURT:  I'll go back to my original
  7   statement.  If the parties want to agree to the
  8   submission of the psychological reports, I'll be
  9   glad to consider those, but, you know, if not, I
 10   think it's clearly hearsay and inadmissible.
 11            THE WITNESS:  It's not hearsay for what a
 12   party says.
 13            THE COURT:  Mr. Smith, I've ruled on your
 14   request.
 15            THE WITNESS:  And I would object.  That
 16   might be the case for Ruth Welsh, but --
 17            THE COURT:  Your exception is noted.
 18            THE WITNESS:  -- when my wife states that
 19   she has uncontrollable rage, that's not hearsay.
 20            THE COURT:  Your exception is noted, sir.
 21   Any other evidence you want to offer today?
 22            THE WITNESS:  I will submit the first

00467
  1   report, once I find it here.  I think I had it in
  2   the motion with the guardian ad Litem.
  3            MS. VARDY:  Your Honor, I'm going to object
  4   to the submission of that report unless all of the
  5   reports --
  6            THE COURT:  I'm not sure what's going to be
  7   offered at this point.
  8            MS. VARDY:  Okay.  He said the first
  9   report.  It is the first report.  When Dr. Behrmann
 10   did the report, he was working as an expert witness
 11   for Mr. Smith's side and only interviewed Mr. Smith.
 12            THE COURT:  Well, you want to show it to
 13   her and see what it is you're offering and see if
 14   she has any objection to that.  And you have other
 15   reports you want to offer?
 16            MS. VARDY:  If we offer the complete ones
 17   including --
 18            THE COURT:  You want to put them together.
 19   Then we'll see if Mr. Smith has any objections to
 20   offering all the reports.
 21            THE WITNESS:  I have the first one here and
 22   it's follow on -- his review of the Hudson one.  Do

00468
  1   you have a copy of the one for Liam?  We might
  2   submit that as well.
  3            MS. VARDY:  I believe and I will -- if I
  4   can, the files are back in the -- if I can go there
  5   I do believe --
  6            THE COURT:  Do you want to check?  You want
  7   to offer them all as a group?
  8            THE WITNESS:  We might as well put them all
  9   in there.  That's the first one of me followed by
 10   his review of the Hudson one.
 11            MS. VARDY:  As I said, if we -- if all of
 12   them -- we need to find the Dr. Behrmann.  I do
 13   believe that --
 14            THE WITNESS:  Well, there are three
 15   documents that we should have in there plus one for
 16   Liam.
 17            MS. VARDY:  The third document is -- I'm
 18   not sure I'm aware of that.
 19            THE WITNESS:  It's a review of the Hudson
 20   report you submitted.  We can toss the Hudson report
 21   in there, too.
 22            MS. VARDY:  I need to go through the files.

00469
  1            THE COURT:  Go ahead.  You can do that now
  2   if you'd like to.
  3            MS. VARDY:  To the file -- I'm talking
  4   about the Court's file.
  5            THE COURT:  Oh, you want to go through the
  6   Court's files to see if you can find it?
  7            MS. VARDY:  Yes.
  8            THE COURT:  Okay.  We'll take about a
  9   five-minute recess and let you do that, okay.
 10            And Mr. Smith, you might help her to.
 11   Apparently there were several reports.
 12            THE WITNESS:  Yeah.  I'm looking --
 13            THE COURT:  Make sure they all come in.
 14   Okay.
 15            (A recess was taken.)
 16            THE COURT:  All right.  Do you have some
 17   documents you've agreed upon?
 18            MS. VARDY:  Yes, Your Honor.
 19            THE WITNESS:  Well, I haven't seen them
 20   yet, but we think we agree.  We're hoping.
 21            THE COURT:  All right.  Let's see what
 22   you've got.  We're going to submit them as a group

00470
  1   as an exhibit on behalf of the defendant.  And let's
  2   put them in some sort of order here.
  3            Report date July 7, '03, from James Toby
  4   Behrmann in the division of Ph.D.
  5            THE WITNESS:  I believe it's pronounced
  6   Behrmann.
  7            THE COURT:  Summary results:  Wesley Smith
  8   is more emotionally adept with resources with Liam
  9   when life falls in the narrower scope that fits his,
 10   Wesley's, assessment and his orientation.  Cheri
 11   Smith has more flexibility in considering and
 12   valuing different points of view and the
 13   complexities associated with him in acting on a
 14   submission of view points.
 15            Wesley can be more off-kilter a bit in his
 16   thinking and hold to that view rigidly.  Cheri can
 17   absorb input that modifies her view, but this
 18   modification and the internal stress intended for
 19   her including the diversion input can't result in
 20   Cheri being less consistent.  I think that's, Can
 21   result in Cheri being less consistent.
 22            Both Cheri and Wesley demonstrate a good

00471
  1   ability to track Liam.  Liam demonstrates an
  2   affection and a security to both parents.
  3            Recommendations:  I'm concerned about
  4   impasses between the two parents regarding decisions
  5   for Liam's best interest.  If they disagree about
  6   educational interventions, for instance, the
  7   conflicting approaches would paralyze the school
  8   system, result in harmful and significant delays.
  9            Since Liam will need closer and customize
 10   ongoing adult intervention/assistance as a
 11   special-needs child, much more of his life would be
 12   impacted by a -- looks like stalemate between the
 13   parents and would be true for a less developmentally
 14   delayed child.
 15            Unless one parent is awarded sole custody I
 16   recommend a psychotherapist be designated a
 17   parenting coordinator, closed quote, by the Court
 18   empowering to work with the parents on issues of
 19   ongoing parenting disagreement on an as-needed basis
 20   and who would have the authority to direct the
 21   parents to a particular decision if they are unable
 22   to agree.

00472
  1            This would also involve directing the
  2   parents to consult with particular professionals
  3   such as Dr. Weiner, I think it is, in hopes that
  4   expert consultation might result in parental
  5   agreement.
  6            And I have a June -- I can't read this one.
  7   It looks like June 11th, 2003.
  8            THE WITNESS:  If -- Judge, if you're going
  9   to -- given that you read that one I would also
 10   request you read the first one which is solely about
 11   me.
 12            THE COURT:  I thought that was the first
 13   one.
 14            THE WITNESS:  No, that was not.  The first
 15   one mentions me.
 16            THE COURT:  Well, let's get them in
 17   chronological order.  This one is February 17th,
 18   '03.  The one I just read is July 7, '03.
 19            THE WITNESS:  The first one --
 20            THE COURT:  And the third one is --
 21            THE WITNESS:  The very first one states
 22   that I have no mental illness of any kind.  That

00473
  1   there's no support of my wife's allegation --
  2            THE COURT:  I'm sorry.  I don't see a date
  3   on the third one.  It looks like, Date of intake
  4   January 27, '03.  And I don't see where the
  5   doctor -- Thomas Hudson, LPC, NCC, CFC.  There's no
  6   date on this report so I'm not sure when he prepared
  7   this report.
  8            THE WITNESS:  I think the first one would
  9   have been attached to exhibit the GAL one.
 10            THE COURT:  This one is by Daybreak
 11   Counseling Services, Thomas Hudson.  Do you think
 12   that was the first one?
 13            MS. VARDY:  I believe that was the first
 14   one in time.  That was done -- Ms. Smith voluntarily
 15   went and had a --
 16            THE COURT:  All right.  And there's one in
 17   February and then there's one in July 7th.
 18            MS. VARDY:  So I think the February --
 19            THE WITNESS:  Yeah, the February 17th, two
 20   pages.
 21            THE COURT:  Wait a minute.  February 17th.
 22   All right.  Let's just take them in chronological

00474
  1   order.  I assume they're chronological at this
  2   point.
  3            I have Thomas R. Hudson, LPC.  Client's
  4   mode of diagnosis of MMP12 and the clinical
  5   evaluation strongly suggest that Ms. Smith does not
  6   appear to suffer from a mental illness --
  7            THE WITNESS:  No, it says a severe
  8   diagnosis.
  9            THE COURT:  -- therefore no diagnostic --
 10            THE WITNESS:  That's an important word not
 11   to leave out.
 12            THE COURT:  All right.  Let me read it for
 13   the record, Mr. Smith, verbatim.
 14            The MMPI2 in the clinical evaluation
 15   strongly suggest that Ms. Smith does not appear to
 16   suffer from a mental illness.  Therefore no
 17   diagnosis is offered for the normal of evaluation,
 18   close quote.
 19            And then we have the report of February 17,
 20   2003.  This is by Dr. Behrmann.  Conclusion:  I
 21   think a full and psychological custody evaluation
 22   needs to be done to get at these questions.

00475
  1            A more complete battery of tests or hearing
  2   by the psychological examiner of concerns for both
  3   parties' separate concerns/allegations are
  4   substantial enough in their possible impact on the
  5   child, on Liam.  They're important in the matter of
  6   custody.  These concerns have not been addressed by
  7   the psychological evaluations done to date.
  8            THE WITNESS:  Which one was that?
  9            THE COURT:  February 17th, 2003.
 10            THE WITNESS:  Could you read the result
 11   section on that one.
 12            THE COURT:  Actually, this one is, Concerns
 13   regarding mental-health evaluation by Dr. Hudson,
 14   dated January 27, 2003, and January 28, '03.
 15            THE WITNESS:  Okay.  Could you read the
 16   other one on the 17th, then.
 17            THE COURT:  The limitations of evaluations,
 18   that one?
 19            THE WITNESS:  The limited psychological
 20   evaluation of Wesley Smith, February 17th, 2003.
 21            THE COURT:  Okay.  It says the test and
 22   interviews conducted are limited.  For instance,

00476
  1   MMPI2 cannot get at possible emotional issues.  It
  2   may occur in unstructured emphasis particularly with
  3   intellectually resourceful individuals.
  4            A more thorough evaluation and testing
  5   regarding parenting skills was not conducted.  This
  6   would include direct test, measures of parenting
  7   skills as well as direct observations of son Liam
  8   with Mr. Smith.  However, there seems to not be a
  9   direct concern about Mr. Wesley Smith's parenting
 10   abilities regarding his son Liam.
 11            Further issues between Mr. and Ms. Smith do
 12   not present as directly bearing on Mr. Smith's
 13   parenting abilities.  That's dated February 17th,
 14   '03.
 15            THE WITNESS:  Yes.  Could you read the
 16   results paragraph on the proceeding page.
 17            THE COURT:  No, it's too long.  I'll read
 18   it, but I won't read it for the record.  It's going
 19   to be part of the record.
 20            And then there's one from July 7, '03,
 21   which is the last one and I think that's the first
 22   one I read.

00477
  1            Okay.  So those are agreed.  We'll mark
  2   them as the next exhibit.
  3            (Defendant's Exhibit Letter EE was received
  4   into evidence.)
  5            THE COURT:  Any other evidence you want to
  6   offer on your behalf, Mr. Smith?
  7            THE WITNESS:  Yes, sir.  I would like to
  8   submit as a group a bunch of e-mail between family
  9   members regarding the mental illness of my wife's
 10   mother.
 11            THE COURT:  Dates?
 12            THE WITNESS:  They range in the time frame
 13   mid-1995/early 1996.  And I'm trying to show that
 14   there is --
 15            THE COURT:  They're e-mails from whom to
 16   whom?
 17            THE WITNESS:  Various family members.  She
 18   has --
 19            THE COURT:  Would they not be hearsay,
 20   Mr. Smith?
 21            THE WITNESS:  Not the ones that my wife
 22   wrote.  But I would like the whole thing entered

00478
  1   into the record because it is a significant problem
  2   and I think that actually is the root cause for why
  3   we're here in divorce court.  So although you may
  4   object to it, I would like it in there so anybody
  5   who wants to look at it.
  6            THE COURT:  This has to do with the mental
  7   health of her mother.
  8            THE WITNESS:  Of her mother, and it is a
  9   genetically related illness and my wife's symptoms
 10   are very similar.  And also not just her mother, but
 11   her grandparents --
 12            THE COURT:  I just read Dr. Hudson's report
 13   that indicates she has no mental illness.  Does that
 14   not have any bearing as far as you're concerned?
 15            THE WITNESS:  And Behrmann said the Hudson
 16   report was useless, which it is.  And the Hudson
 17   report -- I mean, in the Behrmann he states that he
 18   did not do sufficient testing.  He stated that to me
 19   before to do something like bipolar or --
 20            THE COURT:  Okay, sir.  If this has to do
 21   with her mother's mental health and due to that fact
 22   it contains hearsay I don't think it would be

00479
  1   admissible, sir.
  2            THE WITNESS:  There are -- I just want to
  3   file them.
  4            THE COURT:  Or relevant.  I don't think
  5   they are relevant to the issues before the Court.
  6            THE WITNESS:  Well, it shows the family was
  7   concerned enough to try to attempt to get the
  8   children taken away from their own mother.
  9            THE COURT:  Thank you, sir.  And you may
 10   submit that.
 11            You may proceed.  You've got about
 12   15 minutes left on your testimony.
 13            THE WITNESS:  All right.  Thank you.  Well,
 14   just for fun let's do some financial.  I would like
 15   to submit the county assessment of our house which
 16   shows as of January 1st, 2006, it was valued at
 17   $590,000 and we had sold it in December of 2003 for
 18   $380,000.
 19            I asked for the assistance of my wife and
 20   she refused to do an equity loan on it, and as a
 21   result of her actions that's a negative contribution
 22   of about $200,000.

00480
  1            THE COURT:  Okay.  Let me ask you to back
  2   up then.  State that again because all those facts
  3   went by rather quickly.  But I need to --
  4            MS. VARDY:  Well, Your Honor I'm going to
  5   object on two basis.  One, relevance.  We're talking
  6   about 2006.
  7            And the second is that in your opinion in
  8   the pendente order -- pendente lite order you
  9   ordered that the house be put on the market for
 10   $340,000 or whatever the market was at that time.
 11            THE COURT:  Do you have a copy of that
 12   order?
 13            MS. VARDY:  I do.
 14            THE WITNESS:  Well, I agree that's what the
 15   order had in it, but the reason it was ordered is
 16   because my wife requested it.  Instead of agreeing
 17   with me to get a home equity loan to pay the
 18   mortgage which --
 19            THE COURT:  Wait a minute, Mr. Smith.  Let
 20   us catch up with you.
 21            THE WITNESS:  Okay.
 22            THE COURT:  So I'm clear what your position

00481
  1   is.  Okay.  So this goes to the pendente lite order.
  2   We're back to the one of October 2nd, '03.  And
  3   marital residence on the last page.
  4            Defendant is awarded exclusive use.
  5   Defendant is to maintain the interior and exterior.
  6   The plaintiff may list the house for sale at $340 or
  7   an amount determined by a realtor.  The parties are
  8   to take steps to preserve the marital home from
  9   foreclosure, which I think was the threat at that
 10   time, and preserve the marital assets.
 11            The parties must cooperate with and settle
 12   the condemnation proceedings for the Virginia
 13   Department of Transportation were [sic] also
 14   pending.
 15           So the house was sold for what figure?  Do
 16   we know off --
 17            THE WITNESS:  Approximately $380.
 18            THE COURT:  $380.  So I suggest it be
 19   listed at $340 and it was listed at $380.
 20            MS. VARDY:  I believe --
 21            THE WITNESS:  It was listed at $399, but it
 22   sold for around $380.

00482
  1            THE COURT:  $380, okay.  All right.  And
  2   back to Mr. Smith's point that you wanted to make,
  3   Mr. Smith, what was it again?
  4            THE WITNESS:  That if my wife had accepted
  5   my proposal to get a home equity loan to pay off --
  6   to keep making mortgage payments instead of selling
  7   the house, we could have sold the house today at
  8   $590,000 approximately $200,000 more.
  9            THE COURT:  If so that -- your fair market
 10   value today is $590,000?
 11            THE WITNESS:  That's correct.
 12            THE COURT:  And do we know the date of sale
 13   of the home?
 14            MS. VARDY:  Well, the date of settlement I
 15   believe was December 12th of --
 16            THE COURT:  December 12.
 17            MS. VARDY:  -- 2003.
 18            THE COURT:  2003.  At the end of '03.
 19   Okay.  And your position is $590,000 today is the
 20   fair market value?
 21            THE WITNESS:  That is what the county
 22   state -- general the counties estimate it low.

00483
  1            THE COURT:  Was it subject to foreclosure
  2   at that time?
  3            THE WITNESS:  Due to the plaintiff's,
  4   actions if she would have accepted my plan we would
  5   have just got a home equity loan and paid it with
  6   that.
  7            THE COURT:  Well, without employment at
  8   that time how would you have made any monetary
  9   contributions to the home equity?
 10            THE WITNESS:  We would have just got it
 11   against the value of the house.  We had lots of
 12   offers.
 13            THE COURT:  How would you make the monthly
 14   payments?  She was going to make them; is that your
 15   position?
 16            THE WITNESS:  No.  We were going to get a
 17   loan against the house for say $50,000.  That would
 18   have covered it for a couple of years.
 19            THE COURT:  And the monthly payments would
 20   have been made by whom?
 21            THE WITNESS:  That's what we would have
 22   used to make the payments.

00484
  1            THE COURT:  I see.
  2            THE WITNESS:  You just borrow more than you
  3   need.
  4            THE COURT:  And who makes those monthly
  5   payments?  It results in monthly payments whenever
  6   you borrow money.  So who would make those monthly
  7   payments if you're not working?
  8            THE WITNESS:  Well, our rent payment was
  9   almost the same.  Had she allowed me to stay in the
 10   house, my rent was only, like, $100 or $200 less.
 11   So I could have made the payment had she been
 12   willing to, you know, just get a loan, a joint loan
 13   to cover a couple months until I got a job.
 14            THE COURT:  Okay.
 15            THE WITNESS:  But I believe she wanted me
 16   out --
 17            THE COURT:  Did you attend foreclosure?  I
 18   mean, did you go to the sale?
 19            THE WITNESS:  Yes, I did.  She threatened
 20   me with contempt and I was ordered to sign it, so I
 21   did so.
 22            THE COURT:  Okay.

00485
  1            THE WITNESS:  I didn't like it, but --
  2            THE COURT:  And she ordered you to sign it?
  3            THE WITNESS:  Well, you ordered me to, but
  4   she threatened me with contempt and --
  5            THE COURT:  Did I order you in this order
  6   to sign it?
  7            THE WITNESS:  That was my understanding.  I
  8   didn't see any obvious reason to think that was --
  9            THE COURT:  I'll read the order again.  C,
 10   the plaintiff may list the house for sale at
 11   $340,000 or an amount determined by the realtor.
 12   Okay.
 13            THE WITNESS:  My understanding is that you
 14   wanted me to, you know, complete the sale.
 15            THE COURT:  What's your position on
 16   $590,000?  That's the fair market value as of today
 17   and counsel is objecting to that figure.
 18            MS. VARDY:  Your Honor, I'm objecting to
 19   the relevance of it since at the time the house was
 20   threatened with foreclosure, Mr. Smith was not
 21   working.  Your order said that my client could list
 22   it.  To now bring up the market went up afterwards.

00486
  1   So would Mr. Smith have -- granted, if the market
  2   went down, that my client had added to the financial
  3   value of the equitable -- of the marital estate.
  4            THE COURT:  Okay.  And what other point did
  5   you want to make, Mr. Smith, about this?
  6            THE WITNESS:  That's it.
  7            THE COURT:  And your position, I think
  8   we've already talked about your position on the
  9   assets, then, the equity that remains.  Escrow, I
 10   should say.
 11            THE WITNESS:  Yes.  I filed a document on
 12   that.  And my position was that we should pay off
 13   the marital debt with it and then divide the
 14   remainder according to the percentage of who earned
 15   the most.
 16            THE COURT:  Okay.
 17            THE WITNESS:  That simple anyway.  If not
 18   we could take the whole thing and apply it to child
 19   support.
 20            THE COURT:  Okay.  Go ahead and finish any
 21   additional testimony you'd look to offer, Mr. Smith.
 22            THE WITNESS:  All right.  I would like to

00487
  1   describe what happened to our marriage.  My wife and
  2   I got along great for many years.  And over the
  3   period of years I had the chance to observe the
  4   mental-health problems of her extended family and --
  5            MS. VARDY:  I'm going to object, Your
  6   Honor, to --
  7            THE COURT:  I'll sustain the objection to
  8   that.  I don't think you're an expert, Mr. Smith --
  9            THE WITNESS:  No, I'm not, but --
 10            THE COURT:  -- you can't render an opinion.
 11            THE WITNESS:  -- everybody concerned
 12   described it that way.
 13            THE COURT:  Let me direct your attention
 14   to, as I asked her, your monetary and non-monetary
 15   contributions to the marriage over the years.  Do
 16   you want to address that?
 17            THE WITNESS:  Not really.  I would rather
 18   stick with this.
 19            THE COURT:  Okay.
 20            THE WITNESS:  I'm not so much focused on
 21   the money.  My son is what's important.  And heck,
 22   if we could actually get people to pay attention, my

00488
  1   wife might find it useful and beneficial --
  2            THE COURT:  Well, that brings up another
  3   subject.  Since your son is important, are you in
  4   arrears $17,000-plus in child support?  And was your
  5   last payment in July of 2004?
  6            THE WITNESS:  I do not know.  The court has
  7   ordered me to spend my time fighting a court case in
  8   which it gives me no hope of winning as opposed to
  9   focusing on a career.  Unless you give me a chance
 10   to make a meaningful role as a parent, you are
 11   forcing me --
 12            THE COURT:  Mr. Smith, did you last pay
 13   child support --
 14            THE WITNESS:  Don't interrupt me.  Let me
 15   provide you an answer --
 16            THE COURT:  -- in July of 2004?
 17            THE WITNESS:  -- you asked me a question; I
 18   would like to answer it.
 19            THE COURT:  You haven't answered my
 20   question, Mr. Smith.  It's a simple question.
 21            THE WITNESS:  I do not know.
 22            THE COURT:  When was the last time you paid

00489
  1   child support?
  2            THE WITNESS:  I do not know.
  3            THE COURT:  How much do you owe in arrears
  4   in child support?
  5            THE WITNESS:  We do not know.  We've
  6   already covered this.
  7            THE COURT:  Why have you not paid child
  8   support if you love your son?
  9            THE WITNESS:  I have told you that I am
 10   fighting for my right to be a parent for him that
 11   you have unlawfully taken away from me.  Until that
 12   is taken care of, that is the number-one goal in my
 13   life and I will not give a second thought to a
 14   career.
 15            THE COURT:  Has it not occurred to you --
 16            THE WITNESS:  If you want me to go back to
 17   work ever, you are going to have to allow me to be a
 18   parent.  Other than that, it's not going to happen.
 19   I'll be honest with you.  I don't play games like
 20   the attorney.
 21            THE COURT:  It sounds like you're playing
 22   games with the Court now, Mr. Smith.

00490
  1            THE WITNESS:  No, I'm not.
  2            THE COURT:  You haven't paid child support.
  3   This is a child you say you love very much.
  4            THE WITNESS:  I have -- no, child support
  5   is mother welfare.  It is what encourages people to
  6   strip children from their fathers.  It is not to
  7   support my son.
  8            THE COURT:  And that's why you haven't
  9   paid?
 10            THE WITNESS:  The most important thing to
 11   my son is being able to spend time with me.  He does
 12   not care about the money.  My son has never done
 13   without.  And if you let me spend time with him, I
 14   am happy to cover his expenses.
 15            What you want is for me to pay my wife for
 16   her adultery.  You want her to make an income off of
 17   keeping him away from me.
 18            THE COURT:  No, this has to do with your
 19   son, not your wife.
 20            THE WITNESS:  No, it is not about my son.
 21            THE COURT:  Support for your son.
 22            THE WITNESS:  The money is not about my

00491
  1   son.  It is about providing money for people like
  2   you and the bar association who rape people in
  3   court, who destroy family lives so you can have a
  4   little income.
  5            THE COURT:  Do you think your son has any
  6   financial needs?
  7            THE WITNESS:  He does.  And if you would
  8   get the court case off my back I could provide him
  9   with a lot of money.  Until you do, that won't
 10   happen.
 11            THE COURT:  Are you so obsessed with this
 12   trial that you cannot work --
 13            THE WITNESS:  Are you obsessed with getting
 14   money you can't let me be a parent?  If you're not
 15   going to let me be a parent -- you treat him like
 16   he's not my son.  I am not paying for somebody
 17   else's child.
 18            THE COURT:  So how much --
 19            THE WITNESS:  You let me be a parent and I
 20   will --
 21            THE COURT:  How much in child support per
 22   month will you pay to your wife if this Court gives

00492
  1   you a weekend visitation with your son on a regular
  2   basis?
  3            THE WITNESS:  That's a trick question
  4   because this Court has a track record of not doing a
  5   damn thing to enforce visitation, so that's kind of
  6   a trick question.  I would still not have any
  7   guarantee -- any time with my son.
  8            THE COURT:  You just told me if you got
  9   custody or visitation with your son you would make
 10   child support payments; isn't that correct?  My
 11   question to you is, if --
 12            THE WITNESS:  If you want to work out a
 13   deal I'd be happy -- if you want make me a parent,
 14   then hey.  I think it is unlawful.  I think it is
 15   immoral, but I'm not stuck on that.  I want to be a
 16   parent.  If you want me to pay extortion so I can be
 17   a parent, let's work a deal.  I'm fine with that.
 18            THE COURT:  So how much would you be
 19   willing to pay if you got visitation with your son?
 20            THE WITNESS:  We -- it would depend on the
 21   details.  So far when I had visitation you have let
 22   my wife violate it, skip it, which brings us back to

00493
  1   court.  If I'm having to spend my time in court --
  2            THE WITNESS:  I'm looking for a dollar
  3   amount.  A dollar amount, Mr. Smith.  Can you answer
  4   that question?  How much a month are you willing to
  5   pay in child support?
  6            THE WITNESS:  If you give me 50 percent
  7   custody, I'll give you your 1,000 bucks a month.
  8            THE COURT:  It's not a conditional
  9   question.  If you have visitation with your son,
 10   which you say you want --
 11            THE WITNESS:  You know, Judge, it's
 12   unlawful for you to combine the two.  I have a right
 13   as a parent, if I never pay a dime, to --
 14            THE COURT:  I didn't combine it, you did.
 15   You told me you would make the payment.
 16            THE WITNESS:  That is what keeps the system
 17   going; we all know it.
 18            THE COURT:  You told me you wouldn't make
 19   the payment until you got visitation.  So I'm
 20   saying --
 21            THE WITNESS:  I can't --
 22            THE COURT:  -- if you got visitation, how

00494
  1   much would you pay?
  2            THE WITNESS:  Until you allow me to stop
  3   focusing the effort on this stupid, senseless court
  4   battle, I don't have the resources to hold down a
  5   decent job.  I don't.
  6            THE COURT:  You're spending all your time
  7   on this suit?  24 hours a day?
  8            THE WITNESS:  You should have noticed by
  9   now that I suck at this.  I have ADD.  Writing
 10   things, presenting them is not my thing.  It would
 11   be like asking you to go design a website.  How long
 12   would it take you to do that?
 13            THE COURT:  How many motions have you filed
 14   in this case, Mr. Smith?
 15            THE WITNESS:  68 and you still haven't paid
 16   any attention to the laws.  And since --
 17            THE COURT:  How many -- should you appeal
 18   this case to the Appellate Courts and represent
 19   yourself on that appeal?
 20            THE WITNESS:  If that's what it takes
 21   because you're not willing to follow your orders of
 22   office and do your job.  Had you done your job right

00495
  1   at the pendent lite hearing --
  2            THE COURT:  And how is that you feel --
  3            THE WITNESS:  -- I shouldn't have to file
  4   any.  The only reason I had to file that many is
  5   because --
  6            THE COURT:  -- representing yourself --
  7            THE WITNESS:  -- you're incompetent and
  8   you're well-recognized prejudiced against men.
  9   Prejudice.  When I talk to attorneys --
 10            THE COURT:  I have no prejudice toward men.
 11            THE WITNESS:  Yes, you do.
 12            THE COURT:  My interest is the best
 13   interest of the child.
 14            THE WITNESS:  You have no business holding
 15   court here.
 16            THE COURT:  If I had prejudice --
 17            THE WITNESS:  You don't have jurisdiction.
 18            THE COURT:  Let me point something out to
 19   you, Mr. Smith.  There's one pendente lite order in
 20   this case which provides extensive --
 21            THE WITNESS:  Which was completely --
 22            THE COURT:  -- visitation to you.  Do you

00496
  1   know who entered that order?
  2            THE WITNESS:  That's not extensive
  3   visitation.
  4            THE COURT:  Do you know who entered the
  5   order?
  6            THE WITNESS:  You did.
  7            THE COURT:  Did I terminate your right to
  8   visitation?  Did I ever enter an order that
  9   terminated your right to visitation?
 10            THE WITNESS:  You took me from being with
 11   my son six days a week to your standard plan.  That
 12   has got nothing to do --
 13            THE COURT:  Answer my question.  Did I ever
 14   suspend your right to visitation with Liam?
 15            THE WITNESS:  But you -- no.  But you
 16   haven't had the balls to restore it.
 17            THE COURT:  Thank you.
 18            THE WITNESS:  Nor has anyone had --
 19            THE COURT:  Any questions of this witness,
 20   Ms. Vardy?
 21            THE WITNESS:  -- the balls to vacate the
 22   illegal unconstitutional order to free speech.

00497
  1            THE COURT:  Time for cross-examination.
  2   Any questions of this witness?
  3            MS. VARDY:  I do have a few, Your Honor.
  4                     CROSS-EXAMINATION
  5            BY MS. VARDY:
  6       Q.   Mr. Smith, I'd like to go back --
  7            THE WITNESS:  I do want this in the file,
  8   by the way.
  9            THE COURT:  I don't know what it is,
 10   Mr. Smith.
 11            THE WITNESS:  This is what the county --
 12            THE COURT:  I'm not going to admit it.
 13            Go ahead, Ms. Vardy.  You may proceed your
 14   cross.
 15            BY MS. VARDY:
 16       Q.   I'd like to go to the Christmas of 2004.
 17   And I'd like to know if prior to your moving out of
 18   the apartment in Woodbridge you gave Ms. Smith a
 19   specific day that you were moving.
 20       A.   I was not aware of a specific date.  I had
 21   provided her notice that I was being evicted.  I
 22   asked her to help work out a plan.  I asked her if

00498
  1   she wanted materials.  I informed her that I was --
  2   since we held a hearing in Circuit Court, you guys
  3   refused to work out a deal, the Court refused to
  4   work out a deal.  I put it in writing that I was
  5   moving out of state.  I told her I was packing up --
  6       Q.   My question is, did you give her a specific
  7   day?
  8       A.   Let me finish.  I told her I was packing up
  9   that weekend.  I asked her if she wanted specific
 10   items --
 11       Q.   Answer my question.
 12       A.   -- she came and picked up certain items at
 13   my apartment --
 14       Q.   My question is, did you give her a specific
 15   date when you were going to move?
 16       A.   Not the exact date.  I did not know.
 17       Q.   Okay.  Thank you.
 18       A.   But she knew very well that I was moving
 19   and approximately when because she saw me packing
 20   and moving and we conversed about it.
 21       Q.   My second question is, when you picked Liam
 22   up for Christmas visitation, did you tell Ms. Smith

00499
  1   that you were bringing him to Michigan?  When you
  2   picked him up or prior to your picking him up?
  3       A.   I did not see her when I picked him up.  We
  4   had discussed it --
  5       Q.   Or prior --
  6       A.   -- and she acknowledged I was moving out of
  7   the area.  I thought we both understood it was to
  8   Michigan.
  9       Q.   Did you ever tell her specifically that you
 10   were taking Liam to Michigan prior to your taking
 11   him?
 12       A.   I thought she was aware of that.  I put,
 13   Out of state.  That's where my family is.  She
 14   acknowledged I was leaving the area.
 15       Q.   Well, isn't it true you're currently living
 16   with your brother in Virginia?
 17       A.   He was in Michigan at the time.
 18       Q.   Isn't it also true --
 19       A.   All --
 20       Q.   -- that you have a sister in Maryland?
 21       A.   That wouldn't be out of the area.  My wife
 22   acknowledged --

00500
  1       Q.   But that's true.  You are saying --
  2       A.   She acknowledged I was leaving the area.
  3       Q.   Mr. Smith, my question to you --
  4       A.   The only place I had to go out of the area
  5   was Michigan.
  6       Q.   -- is a yes-or-no question.  Did you tell
  7   Ms. Smith prior to your taking Liam to Michigan
  8   during your Christmas visitation that you were going
  9   to take him?
 10       A.   She did not ask, and based on her
 11   comments I thought she understood that.
 12       Q.   Please answer my question.  Did you tell
 13   her --
 14       A.   I did answer your question.
 15       Q.   No.  My question is a yes or no.  Did you
 16   tell her prior to your leaving the state with Liam
 17   that you were going to leave the state with him and
 18   go to Michigan over the Christmas break?
 19       A.   I told her where I was moving.  And I
 20   thought she understood it was with my family in
 21   Michigan.  Which is why I thought -- I was shocked
 22   she didn't object because I figured she was going to

00501
  1   her brother in Ohio --
  2            MS. VARDY:  Your Honor --
  3            THE WITNESS:  Which is halfway there.
  4            MS. VARDY:  -- can I ask you to direct the
  5   witness to answer --
  6            THE COURT:  If you could just answer the
  7   question, Mr. Smith.  It's not a difficult question.
  8            THE WITNESS:  What was the question again?
  9            BY MS. VARDY:
 10       Q.   Did you tell Ms. Smith prior to the time
 11   that you left Woodbridge, Virginia, with Liam on
 12   your Christmas visitation that you were leaving the
 13   state prior to Christmas --
 14       A.   Yes, I did tell her I was leaving the
 15   state.
 16       Q.   Please let me finish the question.  Prior
 17   to Christmas?
 18       A.   Yes, I did indicate I would be leaving the
 19   state.  I put that in writing.  I even went so
 20   far --
 21       Q.   Did you give her --
 22       A.   Let me finish.  I went so far to point out

00502
  1   the current court order required her to come pick
  2   him up where I went and it would be inconvenient for
  3   her.
  4            THE COURT:  Do you know the year?  Do you
  5   know the year?  Christmas of what year.
  6            MS. VARDY:  2004.
  7            THE COURT:  2004, okay.
  8            THE WITNESS:  I went so far to point out
  9   the terms of the court order that it would be
 10   inconvenient for her and I asked her to work out a
 11   different arrangement.  She never requested a
 12   different arrangement.
 13            BY MS. VARDY:
 14       Q.   When you picked -- prior to you picking
 15   Liam up for Christmas visitation did you inform
 16   Ms. Smith that you were taking Liam to Michigan?
 17       A.   I thought I had.  I did not use the word
 18   "Michigan," but I thought she understood that.
 19       Q.   Okay.  Why did you believe she understood
 20   that?
 21       A.   Because she stated in writing that I was
 22   going to be moving out of the area soon.  She knew

00503
  1   where my family was located.  She visited them.
  2   They all live within about ten miles of each other.
  3       Q.   Okay.  I'm not -- I mean, you just said she
  4   indicated "soon."  There's nothing there that
  5   Ms. Smith -- did Ms. Smith say to you, I know you
  6   will be moving, before -- when you pick -- at the
  7   time you picked Liam up to go to Michigan?
  8       A.   She was aware I was packing.  She took some
  9   of the items that I offered her.  So she knew I
 10   wasn't going to be there.
 11       Q.   Did she know on what specific day you were
 12   going to leave?
 13       A.   I didn't know exactly which day, but it was
 14   clear I wasn't going to be there then.  I told her
 15   which weekend I was packing up to leave, which was
 16   the weekend right before.
 17       Q.   That you were packing that weekend?
 18       A.   Yeah.  And she came by and saw the boxes.
 19   She took some items.  She even took some items I
 20   didn't offer her.
 21       Q.   But you didn't state to her that you were
 22   leaving at that time even when she came by and you

00504
  1   were packing?
  2       A.   And when we had previously discussed the
  3   eviction I said it would be difficult to move in
  4   with my mother because I owed her so much money, at
  5   which point you agreed to release funds to my mother
  6   and I took that as an agreement from you that you
  7   were trying to help me move back with my mother.  So
  8   I thought she understood where I was going.
  9       Q.   Do you agree -- you heard your wife testify
 10   that Liam looks forward to things and that when he
 11   believes something's going to occur he is either
 12   confused or a little troubled when they don't occur.
 13       A.   He was upset when she denied him time with
 14   his father, yes.
 15       Q.   That's not what I asked.  I asked a general
 16   question.  Is predictability an important thing to
 17   Liam?
 18       A.   He's a lot more flexible than she gives him
 19   credit for.
 20       Q.   Would you answer my question.
 21       A.   I did.
 22            THE COURT:  You haven't answered it yet.

00505
  1            THE WITNESS:  It's not a yes-or-no
  2   question.
  3            THE COURT:  See if you can answer her
  4   question.
  5            THE WITNESS:  He does not like it to the
  6   degree you're stating.  He does not like complete
  7   random either.  He does not like fixed, rigid
  8   schedules.  He likes to do things at different
  9   times.
 10            BY MS. VARDY:
 11       Q.   Does he like to know in advance what he's
 12   going to do?
 13       A.   No.  When I've had visitation and he has
 14   said, I want to read a book with my mom, he enjoyed
 15   doing it right then instead of saying, oh, well,
 16   he's only allowed to see his mother at these
 17   particular times.  He likes flexibility in those
 18   types of arrangements.
 19       Q.   So are you disagreeing, then, with
 20   Ms. Smith about predictability?
 21       A.   Yes.  She has quite conflict with our
 22   son --

00506
  1       Q.   I just -- yes or no, please.
  2       A.   Yes, I do disagree.
  3       Q.   Okay.  Then how do you feel since your
  4   philosophy differs you would be able to work on
  5   visitation?  Would you -- could you commit to being
  6   there when you've made plans with Liam?
  7       A.   I have always done so.  When the court
  8   order said she was supposed to pick him up at
  9   particular --
 10       Q.   Please answer my --
 11       A.   Let me finish.
 12       Q.   No.  Answer my question.  I'm asking the
 13   questions.
 14       A.   When the court order said I should have him
 15   ready to go I am to have him dressed as directed.
 16            MS. VARDY:  Your Honor, would you please
 17   direct him --
 18            THE WITNESS:  I have had him packed up, I
 19   have had him standing by the door.  She has never
 20   had to wait.  I have always had him ready for that.
 21   And the same thing for picking up.  I have always
 22   showed up early, I have sat in the parking lot and I

00507
  1   wait until the minute I'm supposed to be there.
  2            As far as exchanges for showing up or
  3   sending him home I have been right on the minute.
  4   It is your client who has -- who has always been
  5   late.  Showing up late, not having him ready.  I've
  6   always been polite to have him totally ready to go
  7   so she didn't have to wait so there would never be
  8   any conflict.
  9            BY MS. VARDY:
 10       Q.   Would you now answer my question, please.
 11       A.   I believe I have.
 12       Q.   No, I don't believe you have.  For
 13   instance, would you agree that Liam was upset last
 14   summer -- now, Your Honor, this would be, yes, the
 15   summer of 2005 when you were unable to take him
 16   camping after you had told him you would take him
 17   camping.
 18       A.   I do not recall anything about that.
 19       Q.   You do to recall that you had talked to
 20   him --
 21       A.   Oh, on the telephone, you mean?
 22       Q.   That you would take him camping during the

00508
  1   summer?
  2       A.   I did not tell him I could take him camping
  3   because I knew I couldn't.  I took -- he asked me to
  4   take him camping and I told him if his mother agreed
  5   I would be happy to do so.  I made it quite clear I
  6   can't without her permission.
  7       Q.   Isn't it true that you were under a court
  8   order at that time suspending your visitation unless
  9   you complied with certain items --
 10            THE WITNESS:  Objection to relevancy.
 11            THE COURT:  You just have to answer the
 12   question, Mr. Smith.
 13            THE WITNESS:  I need a ruling on my
 14   objection.  Visitation has got no --
 15            THE COURT:  I wouldn't make you answer the
 16   question if I didn't think it was relevant,
 17   Mr. Smith.  Just answer the question.
 18            THE WITNESS:  Could you repeat the
 19   question.
 20            BY MS. VARDY:
 21       Q.   At the time you stated to Liam that it was
 22   up to his mother as to whether he would be able to

00509
  1   go camping --
  2       A.   Yes.
  3       Q.   -- were you not under an order from this
  4   Court suspending your visitation until you had
  5   abided by certain conditions?
  6       A.   There was a court order that said something
  7   similar to that.
  8       Q.   Okay.  Why, therefore, did you tell Liam
  9   that it was his mother who would be making the
 10   decision?
 11       A.   Because that's who would be making the
 12   decision.  The visitation is nothing more or less
 13   than a temporary change in custody.  Let me answer
 14   your question.  Don't interrupt.
 15            When I have visitation I have custody.
 16   When she has -- well, I guess they don't call it
 17   visitation, but when I do not have visitation she
 18   has custody of Liam.  She can let Liam go off with
 19   her boyfriend, Igor Bakhir.  He has no court order
 20   granting him visitation.  She can let him go off
 21   with you.
 22            The person who has custody and decides what

00510
  1   happens to that child can let that child go anywhere
  2   they want with anybody they want unless it's a court
  3   order contrary.  Were she to let Liam visit me, I
  4   still would not have a legal control of him.  I
  5   would not have visitation, but I could spend time
  6   with him.
  7            Such as yesterday during lunch when I still
  8   had my visitation suspended, guess what?  You guys
  9   allowed Liam to spend time with me.  That is an
 10   option she has always had.
 11            Even if by some far stretch of imagination
 12   you guys somehow construed in spite of my repeatedly
 13   telling and giving you the legal references that the
 14   court order for him to desert from doing that, how
 15   in the world could that harm you?  Could you even
 16   imagine I would file a contempt-of-court charge
 17   because you let me spend time with Liam?  That's
 18   laughable.
 19             The only reason that I wasn't allowed to
 20   spend time with him was because she didn't have
 21   enough concern for Liam's feelings to allow it to
 22   happen.  She could have let him spend time with me.

00511
  1   And she would still have custody.  I would not have
  2   visitation.  I would not have legal control.
  3       Q.   May I ask you a question?  If spending time
  4   with your son was so important to you, why didn't
  5   you comply with the conditions that this Court
  6   imposed upon you?
  7       A.   I have complied.  If you -- you keep saying
  8   it's important to let Liam spend time with me and
  9   yet you keep filing legal impediments to that, from
 10   a protective order in 2002 to false accusations in
 11   exchanges.  Repeatedly you prevent Liam having a
 12   father when you have the choice otherwise.
 13       Q.   I'm going to --
 14       A.   You call the police during my court-ordered
 15   visitation.  That's totally reprehensible.  I
 16   complied.  I have asked his psychologist -- first of
 17   all, the order is vague of who.  It's not clear
 18   whether I could hire one myself.  It says his; it
 19   doesn't say who.  But given I don't have access to
 20   Liam that makes it kind of difficult.
 21            I have asked him for a report.  He has not
 22   responded.  The psychologist is your employee.  I

00512
  1   have no control over him.  I did get the records
  2   because state law requires him to provide it and his
  3   professional organization requires him to provide
  4   it.  And dragging his feet, I threatened to sue him
  5   if he didn't so he complied.  But he has so far
  6   refused to discuss visitation at all.
  7       Q.   Did you ever ask this Court to order the
  8   therapist to make a report?
  9       A.   No, I have not.  It would --
 10       Q.   Okay.  Thank you.
 11       A.   -- be pointless to do so because everybody
 12   in this Court from you, my wife --
 13       Q.   Please just answer --
 14       A.   -- the guardian all stated --
 15       Q.   Did you --
 16       A.   -- my son wants to see me.  State policy is
 17   that it is in his best interest already.  I have
 18   asked the Court to modify the court order and so far
 19   no judge has the concern for my son to do it.
 20   There's no need for a psychologist report to state
 21   the obvious --
 22       Q.   Did --

00513
  1       A.   -- to comply with state law, to comply with
  2   the state policy that preference is --
  3       Q.   Mr. Smith --
  4       A.   -- unless otherwise shown as harmful --
  5       Q.   Thank you.  But I -- this is my --
  6       A.   -- visitation is in the child's best
  7   interest.
  8       Q.   -- time to ask questions.
  9            MS. VARDY:  Your Honor, I'm going to ask
 10   you again to please --
 11            THE COURT:  All right.  Just answer the
 12   question briefly if you can.
 13            Move on to the next question.
 14            BY MS. VARDY:
 15       Q.   Did you supply myself or this Court or the
 16   guardian ad litem with a proposed visitation
 17   schedule as you were ordered by that court?
 18       A.   Yes, I did.
 19       Q.   When did you supply that?  I don't
 20   believe --
 21       A.   When I asked to change custody.  That is a
 22   statement of how I would like it changed.

00514
  1       Q.   That is a statement of how you would like
  2   it changed, yes.  But if your concern is spending
  3   time with your son, as you say it is, your son who
  4   is challenged, do you not think it would be in
  5   Liam's best interest for you to obey the court order
  6   so that he could spend time with you?
  7       A.   I did obey the court order.  There is
  8   nothing more absurd than a court order suspending
  9   visitation between a father who everybody
 10   acknowledges takes good care of his son, and
 11   everybody acknowledged that his son wants to be with
 12   him where he has been clinically described as
 13   depressed because he is being kept away from his
 14   father.
 15            There is -- that is absurd.  Nothing --
 16   there could be a worse possible visitation order in
 17   the world.
 18       Q.   Mr. Smith, what --
 19       A.   What is reasonable to any person who would
 20   ever support such a concept is beyond me.
 21            MS. VARDY:  Your Honor, may I --
 22            THE COURT:  Mr. Smith, let's go on to the

00515
  1   next question.
  2            THE WITNESS:  There is no way in the world
  3   I could presume what you would find acceptable or
  4   what Judge Potter would find acceptable.  If you
  5   find suspending visitation under those circumstance
  6   acceptable, I got no clue what's in your head.  It's
  7   up to the Court to determine that.  If they don't
  8   want to follow a reasonable plan like I suggested,
  9   it's up to the Court to dictate.
 10            BY MS. VARDY:
 11       Q.   I am going to move on to another issue.
 12       A.   All right.
 13       Q.   Mr. Smith, do you think it is in your son's
 14   best interest -- well, actually, it's not -- excuse
 15   me.  Let me put it this way.  Do you have
 16   conversations with your son about his mother?
 17       A.   On occasion.  It's not a topic I like to
 18   bring up.
 19       Q.   Have you worn a T-shirt which has something
 20   on it about what a good mother does on the front of
 21   it?
 22            THE WITNESS:  Objection to relevance.

00516
  1            THE COURT:  Overruled.  You can answer the
  2   question, Mr. Smith.
  3            THE WITNESS:  Yes.  I have worn a T-shirt
  4   that says, A good mother does not sleep around with
  5   coworkers, deprive a child of his father, blah,
  6   blah, blah, that type of thing.  But my son could
  7   not read it.  My son loved that T-shirt because it
  8   had a picture of his mother on it.  And his only
  9   comment was he liked her haircut.
 10            BY MS. VARDY:
 11       Q.   Okay.
 12       A.   I do not -- I do not --
 13       Q.   Did you wear that --
 14       A.   -- say things like that.
 15       Q.   -- in public with your child?
 16       A.   Huh?
 17       Q.   Did you wear that T-shirt in public --
 18       A.   I don't recall.
 19       Q.   -- with that -- your child?
 20       A.   But I do not try to interfere with his
 21   relationship with his mother.
 22       Q.   Did you wear it to --

00517
  1       A.   If he could have read it --
  2            THE COURT:  Mr. Smith, just be responsive
  3   to the question if you will, all right?
  4            THE WITNESS:  Well, respectfully, Judge,
  5   you didn't do that when I was asking questions.
  6            THE COURT:  Mr. Smith, just be responsive
  7   to her questions.  You're not doing that.
  8            Go ahead, Ms. Vardy.
  9            BY MS. VARDY:
 10       Q.   Mr. Smith, are you aware that there was an
 11   order entered by this Court stating that you were to
 12   dismantle the website and that specifically no
 13   pictures of Liam -- no more pictures of Liam were to
 14   be put on the website and the ones that were
 15   there --
 16       A.   No, I'm not.
 17            MS. VARDY:  Sorry, Your Honor, I seem to
 18   have passed that up.
 19            THE COURT:  I believe you're looking at
 20   Judge Farris' order of September 23 of '04.
 21            MS. VARDY:  Yes, I am.  I took it out of my
 22   book and --

00518
  1            THE COURT:  I don't think it's part of your
  2   notebook at this point, but you may have it in your
  3   own records.
  4            MS. VARDY:  No, I took it out of my
  5   notebook at one point to pass either up or to --
  6   Your Honor, may I barrow from your notebook?
  7            THE COURT:  It's not in the notebook.
  8            MS. VARDY:  It has been entered.
  9            THE COURT:  It has been entered?  Do you
 10   know which exhibit it could be?
 11            MS. VARDY:  It was entered in --
 12            THE COURT:  It wasn't part of 1, was it?
 13   No, that's all juvenile.
 14            MS. VARDY:  Okay.
 15            THE COURT:  Did you find it?
 16            MS. VARDY:  It is -- I'm sorry, Your Honor,
 17   it's under tab 20.
 18            THE COURT:  Okay.  I didn't think I saw
 19   that.
 20            MS. VARDY:  I wanted to show it to
 21   Mr. Smith to see if I could jog his recollection.
 22            THE WITNESS:  Yes.

00519
  1            BY MS. VARDY:
  2       Q.   Do you remember this order?
  3            THE WITNESS:  There's an objection for
  4   that.
  5            THE COURT:  I'm not sure we're looking at
  6   the same order.  The one under tab 20 is October the
  7   5th by Judge Hamblen.  I don't think that's the one.
  8            MS. VARDY:  No.  I'm sorry, Your Honor,
  9   you're right.  It was D-1.  It was in the one before
 10   that.
 11            THE COURT:  Okay.  So you want to offer
 12   that as an exhibit?
 13            MS. VARDY:  I'm sorry.
 14            THE COURT:  Just for the record so we have
 15   it.  It's already in the file, of course, because it
 16   is an order of this Court.  We'll mark it as an
 17   exhibit.  And that is, in fact, Judge Farris' order
 18   of -- Judge Farris' order of September 23, '04.
 19            (Plaintiff's Exhibit Number 8 was received
 20   into evidence.)
 21            BY MS. VARDY:
 22       Q.   Do you think it was -- it is appropriate

00520
  1   for you to have exposed your son to the T-shirt with
  2   the negative statements?
  3            THE COURT:  Before you do that, do you have
  4   any objection to the order being entered at all,
  5   Mr. Smith?
  6            THE WITNESS:  As described as an order,
  7   yes.
  8            THE COURT:  Okay.
  9            THE WITNESS:  As describe as a document
 10   created by Judge Farris to show that he does not
 11   follow the constitution of the United States or
 12   fulfill his oath of office, I'm fine with that.
 13            THE COURT:  Okay.  Sir, I overrule your
 14   objection and I'll admit this as Exhibit 7 on behalf
 15   of the plaintiff.
 16            (Plaintiff's Exhibit Number 7 was received
 17   into evidence.)
 18            THE WITNESS:  Yes.
 19            BY MS. VARDY:
 20       Q.   Did you also put fliers up at Ms. Smith's
 21   residence soon after she moved there with Liam's
 22   picture on it?

00521
  1            MS. VARDY:  And Your Honor, that's 22 in
  2   the tab, I believe.
  3            BY MS. VARDY:
  4       Q.   Do you recognize this?
  5       A.   Yes.
  6       Q.   Okay.
  7       A.   Although the color version looks much
  8   better.
  9       Q.   Did you -- could you tell us where you put
 10   those fliers?
 11       A.   No, I could not.
 12            THE COURT:  Or when?  Do we know the time
 13   frame at all?
 14            MS. VARDY:  It would have been August 2004,
 15   Your Honor, approximately.
 16            THE COURT:  Is that right, Mr. Smith?
 17            THE WITNESS:  What's that?
 18            THE COURT:  Were these posted in August of
 19   2004?
 20            THE WITNESS:  I wouldn't know, sir.
 21            THE COURT:  Okay.
 22            BY MS. VARDY:

00522
  1       Q.   Are you stating you did not post the
  2   fliers?
  3       A.   No.
  4       Q.   Did you post the fliers?
  5       A.   Yes.
  6       Q.   Yes, you did?  Okay.  But you don't
  7   remember when?
  8       A.   No.
  9       Q.   Okay.  Do you -- did you post them in the
 10   apartment building where Liam and Ms. Smith live?
 11       A.   Yes.
 12       Q.   Okay.  Was there a possibility that Liam
 13   would have seen this?
 14       A.   He could not read it.
 15            THE WITNESS:  I would have to object to the
 16   relevancy.
 17            BY MS. VARDY:
 18       Q.   Do you possibly think that others in the
 19   apartment who read it might say something to Liam?
 20       A.   No.  I would not have expected them to.
 21       Q.   Okay.  But can you rule that out?
 22       A.   I can't rule anything out.  I can't rule

00523
  1   out the fact that my wife with uncontrollable rage
  2   is beating him up --
  3            MS. VARDY:  Your Honor --
  4            THE WITNESS:  -- and that by posting a
  5   flier somebody might keep an eye out and prevent
  6   something more harmful from happening to him.
  7            BY MS. VARDY:
  8       Q.   Is there --
  9       A.   Given the Court has refused to take
 10   reasonable steps to protect him, I thought it
 11   appropriate to inform the neighbors I -- I made no
 12   claim that she has done things.  Well, she has
 13   attacked me, but I think it's appropriate for the
 14   neighbors to keep an eye out.
 15            Kind of like you called the hotline.  I was
 16   just asking for the neighbors to keep a look out
 17   which is very appropriate behavior as a neighbor
 18   notices child abuse they should keep an eye out and
 19   report it.  And given that there's a high risk in
 20   this case --
 21       Q.   Doesn't your conduct exceed a little bit
 22   from talking about a child to you're talking about

00524
  1   your child and you have his pictures all over --
  2       A.   I'm much more concerned about it happening
  3   to him, yes, than other children I don't know.
  4       Q.   Let me ask you another question.
  5       A.   I have no obligation to protect the other
  6   children.  Only in my own.
  7       Q.   Both in this flier and on your website --
  8       A.   What's that?
  9       Q.   Both in this flier and on your website you
 10   have not only placed a picture of Liam, you have
 11   also stated where he lives, you have stated that he
 12   has Down Syndrome.  Do you worry at all --
 13            THE WITNESS:  I have to object to you
 14   testifying.
 15            MS. VARDY:  The flier speaks --
 16            THE COURT:  Go ahead and finish your
 17   question, Ms. Vardy.
 18            BY MS. VARDY:
 19       Q.   Do you think at all that Liam -- that
 20   Liam -- that information about Liam may be an unwise
 21   thing to put out in public for Liam's safety?
 22       A.   You haven't established a foundation that

00525
  1   it is.
  2       Q.   Do --
  3            THE WITNESS:  I would have to object to
  4   that.
  5            BY MS. VARDY:
  6       Q.   Okay.  Do you have a website, Mr. Smith?
  7       A.   Yes, ma'am.
  8       Q.   Do you have a description of your son on
  9   the website?
 10            THE WITNESS:  I would have to object to
 11   vague.
 12            THE COURT:  Just answer the question,
 13   Mr. Smith.
 14            THE WITNESS:  I'm asking her what she means
 15   by "description."
 16            THE COURT:  Okay.  It's overruled.
 17            BY MS. VARDY:
 18       Q.   The description of his personality?
 19       A.   I could not say.
 20       Q.   Mr. Smith, do you have control of what goes
 21   into the website?
 22       A.   Absolutely.  But as I keep telling you I

00526
  1   have ADD.  Asking me what is exactly on a page
  2   without letting me look at the page is pretty much a
  3   pointless exercise unless it's something I've done
  4   recently.  And other than photos of Liam, very nice
  5   photos, I have not updated anything about him
  6   recently.
  7       Q.   Uh-huh.
  8       A.   I couldn't tell you what I have about you
  9   on my website either.  I hope it's good.  Or about
 10   Judge Potter.  Although I have a better idea about
 11   his page.  I've had a case to review it recently.
 12       Q.   I see.  Okay.  Let me ask you this.  We'll
 13   let the website go for a moment.  Do you -- did you
 14   place fliers such as anywhere other than in
 15   Ms. Smith's apartment complex?
 16       A.   I don't think so.
 17       Q.   Was there ever a time that you left similar
 18   fliers or those fliers on cars in the parking lot of
 19   the SAIC building?
 20       A.   No.
 21       Q.   Did anyone do so for you?
 22       A.   No.

00527
  1       Q.   Did you leave any other sort of fliers
  2   about Ms. Smith and Liam on cars in the parking lot?
  3       A.   No.
  4       Q.   Did anyone do it for you?
  5       A.   No.
  6       Q.   Were you ever escorted out of the parking
  7   lot by SAIC security guards?
  8       A.   No.
  9       Q.   Let me ask you this.  Is this a page --
 10   copy of a page from your website?
 11       A.   No.
 12       Q.   No?  Okay.  What is it a copy of?  Why can
 13   you not identify this copy of a page from your
 14   website?
 15       A.   Because my website under "latest updates"
 16   would have something different there.
 17       Q.   Okay.
 18       A.   Second thing would be about Judge Potter.
 19       Q.   Okay.  This was a copy made in January of
 20   2005.
 21       A.   I wouldn't recall what was on my website at
 22   that point.

00528
  1       Q.   Does it appear to have similar structure,
  2   banner?  As a matter of fact, you are the person of
  3   computer science.  Can two websites have the same
  4   website address?
  5       A.   You could, yeah.
  6       Q.   You could have the same identical website
  7   address?  How would people know [sic] mail or people
  8   get to the place they wanted if you had two
  9   identical?
 10       A.   They don't notice the difference and that's
 11   why people do it.
 12       Q.   Okay.  Mr. Smith, are you denying this is a
 13   page of an accurate representation of your website
 14   in January of 2005?
 15       A.   There we go.  I'm not denying it.
 16       Q.   Are you stating that it is?
 17       A.   No, I'm not.  I would not recall what was
 18   on it at that point.
 19       Q.   Okay.
 20       A.   Would you like a little help?
 21            MS. VARDY:  Your Honor, at this point I
 22   would like to be able to treat the witness as

00529
  1   uncooperative.
  2            THE WITNESS:  I was just answering the
  3   questions honestly.
  4            THE COURT:  I'll let you proceed,
  5   Ms. Vardy, but I don't think he's a hostile witness.
  6   He's a party in the case, an adverse party.  You may
  7   proceed.
  8            BY MS. VARDY:
  9       Q.   Okay.  I will ask you, Mr. Smith, whether
 10   you have a picture -- whether on your website you
 11   have stated anything stating that Ms. Smith has kept
 12   and the Court has kept Liam from seeing you ever on
 13   your website.
 14       A.   I'm waiting for the question.
 15       Q.   The question is, have you ever put on your
 16   website a statement in a letter addressed to Liam
 17   that Ms. Smith and the Court have kept you from
 18   seeing him?
 19       A.   Yes.
 20       Q.   Okay.  And is the website a public arena?
 21       A.   Absolutely.  I get readers in 43 countries
 22   sometimes.

00530
  1       Q.   Okay.  Do you think that it is in Liam's
  2   best interest to involve him in the conflict between
  3   you --
  4       A.   You made that choice by fighting for
  5   custody rather than accepting my agreement for
  6   50/50.  Are you asking if I think that was a poor
  7   choice on your part?
  8       Q.   No, I'm not.
  9       A.   Yes, I do.  It would have been much better
 10   if my wife had agreed to cooperatively raise our
 11   son.
 12       Q.   Mr. Smith, when you -- excuse me, Your
 13   Honor, I'm bouncing back.  When you were in Michigan
 14   did you tell Liam his mother would be there at 1:00
 15   on Christmas Day to pick him up?
 16            THE WITNESS:  I would have to object to
 17   your vague question.
 18            THE COURT:  Just answer the question,
 19   Mr. Smith.  Objection overruled.
 20            THE WITNESS:  I have been in Michigan
 21   multiple times.
 22            BY MS. VARDY:

00531
  1       Q.   On Christmas Day of 2004?
  2       A.   I do not believe so.
  3       Q.   When did Liam -- when did you tell Liam he
  4   would be returning home?
  5       A.   I'm not sure we discussed that.
  6       Q.   So you are stating then that you brought
  7   your son to Michigan during your visitation period
  8   without notifying his mother beforehand exactly
  9   where you were going and you did not give Liam any
 10   idea what the future was going to hold for him?  He
 11   was just there in Michigan with you?
 12       A.   That's a multi-part question.
 13       Q.   I'm asking if Liam was given any
 14   information about when he would return home to
 15   Virginia while you were in Michigan prior to the
 16   time that his mother --
 17       A.   We generally expected her to follow the
 18   visitation schedule.  We didn't discuss it a lot.
 19       Q.   Which was what?
 20       A.   As I recall she was suppose to pick him up
 21   Christmas Day or the day after.  I didn't recall.
 22       Q.   So you have a little boy with Down

00532
  1   Syndrome, as we've all talked about, who needs some
  2   understanding and some knowledge beforehand what's
  3   going to happen to him to be made comfortable --
  4       A.   Is that your testimony?
  5       Q.   That was the testimony of Ms. Smith.
  6            THE WITNESS:  I would have to object.
  7            BY MS. VARDY:
  8       Q.   Did you not think it appropriate to give
  9   Liam some information about when you were going to
 10   Michigan beforehand and when he would be coming
 11   home?
 12       A.   He seemed very happy to go.  And he was
 13   having a lot of fun with his cousins.  He was not
 14   worried about it.  I was the one worried about it
 15   because I had to stay there and wait for her to show
 16   up instead of going and doing the other activities
 17   that were planned out.
 18       Q.   Okay.  If this Court grants you visitation,
 19   Mr. Smith, how would you address the concerns about
 20   Liam having consistency and being able to be
 21   prepared for visitations and for trips?  Being
 22   prepared in advance?

00533
  1       A.   I have always complied with the court order
  2   pretty much to the minute.  It is your client who
  3   has not complied with the visitation provision.  My
  4   son was ready to go at the proper place at the
  5   proper time.  The fact that your client didn't want
  6   to recognize that and refuse to work out another
  7   arrangement.
  8            MS. VARDY:  Your Honor, I'm --
  9            BY MS. VARDY:
 10       Q.   Mr. Smith, I'm asking for the future.
 11   Whether --
 12       A.   I would continue my practice of having my
 13   son ready to go, dressed with his shoes on, waiting
 14   by the door at the minute she's supposed to pick him
 15   up or vice versa if I drop him off.
 16            I have always made arrangements when I show
 17   up to be there early in the parking lot.  When the
 18   court order says 7:00 I do not show up at 6:55.  I
 19   do not show up at 7:03.  I show up at 7:00.  And the
 20   same thing for having him ready.
 21            I have -- I don't say, Oh, well he's here;
 22   you have to wait while I pack his bags.  I have

00534
  1   always had it so he is ready to go the second she
  2   shows up at the door.  And that makes it very
  3   stress-free for him because he just -- he's happy to
  4   see her and he can just walk right on out.  There's
  5   not a problem.  There's no reason for me to say
  6   anything to her or her say anything to me.
  7            My preference was I didn't want to see her.
  8   Worked out great for everybody.  It's your client
  9   who would insist on sitting out front of her
 10   apartment to talk to me.
 11       Q.   What -- okay.  Will you, if granted
 12   visitation, not discuss any of the conflict between
 13   you and Ms. Smith in front of Liam?
 14       A.   I do not discuss anything that I don't have
 15   to.  I don't discuss anything inappropriate.  When
 16   he discusses, for example, her and Igor sleeping
 17   together I do tell him that is wrong; they shouldn't
 18   do that.
 19            When he tells me that her and Igor went ice
 20   skating I ask him, Did you have a good time?  Did
 21   you have fun?  If he doesn't mention them doing
 22   something -- have sex, I don't bring it up.  I focus

00535
  1   on did he enjoy.  That is my job.
  2            But I have a right to instill my values in
  3   him, and given that I'm not religious -- I'm not
  4   overzealous about it, but it is wrong, it's very
  5   destructive.  And I certainly understand why they
  6   used to stone people for it.  When he mentions it I
  7   do make a short sentence that that's inappropriate.
  8   Although once we get divorced that's kind of
  9   resolved then it's not adultery anymore.
 10            But I do not make an issue of it.  And when
 11   he is indoctrinated by his mother, says, I love you;
 12   I don't love her, which is something he got from
 13   her.  I correct him and remind him he can love both
 14   of us.  He doesn't have to pick one or the other.
 15   When he says something good about her, I encourage
 16   it.  When he says something that's bad or incorrect,
 17   I will correct him.
 18       Q.   And if he says something -- well, let me
 19   ask you this.  Does your son ever say anything, make
 20   statements to see what your reaction will be?
 21       A.   I don't think so.
 22       Q.   Okay.

00536
  1            MS. VARDY:  Your Honor --
  2            THE WITNESS:  He knows I support him.  When
  3   he says he's done whatever with her, my concern, did
  4   he have fun?  If he has had fun, who am I to object?
  5            THE COURT:  Any last questions?
  6            MS. VARDY:  No, Your Honor.
  7            THE COURT:  All right.  We'll take our
  8   lunch recess at this time.
  9            Do you have any other questions on cross,
 10   Ms. Vardy?
 11            MS. VARDY:  No, Your Honor.
 12            THE COURT:  All right.
 13            (Witness excused.)
 14            THE COURT:  We'll take up the argument
 15   then.  Over the recess I think you said you were
 16   going to look up --
 17            MS. VARDY:  I do have one question.  Right.
 18   There have been no payments at all since the payment
 19   would have been the one started August 1st.  Do you
 20   want me to just list out the months or do the
 21   multiplication on the number of months?
 22            THE COURT:  You'll probably have to just do

00537
  1   the multiplication.  You're saying he hasn't paid
  2   any since the court order?
  3            MS. VARDY:  No.  Since July of --
  4            THE COURT:  Well, I think to give him
  5   proper credit we need to show --
  6            MR. SMITH:  I paid every month until I ran
  7   into financial problems.
  8            THE COURT:  -- how much he has paid and how
  9   much he hasn't paid.
 10            MS. VARDY:  Okay.
 11            THE COURT:  So you're probably going to
 12   have to break it down.
 13            MS. VARDY:  Break it down.  That's all I
 14   wanted to know.
 15            THE COURT:  I'll ask you to do that.  We'll
 16   be in recess then until 2:00.
 17            MS. VARDY:  Thank you, Your Honor.
 18            (Whereupon, a lunch recess was taken.)
 19   
 20   
 21   
 22   

00538
  1                    AFTERNOON SESSION
  2                                      (2:05 p.m.)
  3            MS. VARDY:  I apologize, Your Honor.
  4   Typing is not my best skill.
  5            THE COURT:  All right.  Ms. Vardy, you have
  6   some exhibit you want to offer on the child support?
  7            MS. VARDY:  Yes, Your Honor.
  8            THE COURT:  This shows as of May 1, 2006, a
  9   total of $18,929.
 10            MS. VARDY:  Yes, Your Honor.  $17,000 was
 11   when I handed in the original papers on 3/16.
 12            THE COURT:  Mr. Smith, have you had an
 13   opportunity to review this document?  Are you
 14   satisfied that's the correct amount?
 15            MR. SMITH:  Yes.
 16            THE COURT:  All right.  We'll mark that as
 17   an exhibit.
 18            Mr. Smith, do you have any objection with
 19   that being introduced?
 20            MR. SMITH:  Yes, I do.
 21            THE COURT:  And the grounds?
 22            MR. SMITH:  Not previously provided and not

00539
  1   having a chance to review it to see what it
  2   contains.
  3            THE COURT:  All right, sir.  I'll let you
  4   look at it now if you'd like to and see if you have
  5   any objections to the figures in it.
  6            MR. SMITH:  I do not have any of my records
  7   here.
  8            THE COURT:  Okay.  We'll go ahead and admit
  9   it then.  I'll overrule the objection.
 10            (Plaintiff's Exhibit Number 9 was received
 11   into evidence.)
 12            THE COURT:  Ms. Vardy, let me ask you to
 13   look at your ED sheet, if you will.  I'm having
 14   trouble jiving your calculations for the marital
 15   debts and those of Mr. Smith's Exhibit B.  Here you
 16   set forth as you know in your Exhibit 2 --
 17            MS. VARDY:  Exhibit B?
 18            THE COURT:  Right.  Your Exhibit 2 and his
 19   Exhibit B.  He has listed some $30,737 in marital
 20   debt which he suggest be paid off and the remaining
 21   balance be divided between the parties on a certain
 22   percentage rate.

00540
  1            MS. VARDY:  I believe that Mr. Smith
  2   identified at least $20,000 of that as being monies
  3   that he took out on two credit cards to live on.
  4            THE COURT:  Well, let me ask you to look at
  5   yours because I can't jive that with yours at all.
  6            On the bottom of page 4 of 5 of yours you
  7   have First USA Bank One joint account.
  8            MS. VARDY:  Yes, Your Honor.
  9            THE COURT:  And you're showing that as back
 10   in September '02, the day she claims is the day of
 11   separation, $6,234.  And you've also indicated she
 12   has testified as she made certain payments on that
 13   account as well.  $3,946 paid, $2,256 principal and
 14   $1,690.  As I understand it, her claim about the
 15   amount of debt is $6,234; is that correct?
 16            MS. VARDY:  What we've done, Your Honor, is
 17   broken down on the page where we've suggested the
 18   reimbursement for what she has paid and for the
 19   interest she has paid on the loans.  And so what
 20   we're asking is that the remaining balance of $4,000
 21   be paid out of the net proceeds.
 22            THE COURT:  Okay.  $4,068?

00541
  1            MS. VARDY:  Yes, Your Honor.
  2            THE COURT:  Okay.  And that's the same
  3   figure he uses as well in issue A -- in issue
  4   Exhibit B.
  5            Then she has got Dyhal Chemical, but that
  6   apparently was paid by Mr. Smith.
  7            MS. VARDY:  Yes, Your Honor.
  8            THE COURT:  Wachovia Bank, which have gone
  9   through some changes.  The joint account, which --
 10   it went through some changes; became First Union and
 11   now is, as I understand it, is Chase Manhattan
 12   Express or Exprise.
 13            MS. VARDY:  No, Your Honor.  Oh, wait.
 14   That's the second Wachovia.  Mr. Smith's Wachovia.
 15            THE COURT:  No.  This is a joint account.
 16            MS. VARDY:  No.  That never became Chase
 17   Exprise.
 18            THE COURT:  Okay.  That never became Chase
 19   Exprise?
 20            MS. VARDY:  No.
 21            THE COURT:  All right.  He shows some
 22   $4,156 due on that account.  You show that same

00542
  1   figure as of June 9, '04.  You're asking that that
  2   be paid as well, correct?
  3            MS. VARDY:  Yes, Your Honor.
  4            THE COURT:  Okay.
  5            MS. VARDY:  I think that's the same -- no,
  6   it's not.  I'm sorry.
  7            THE COURT:  And that's his Wachovia Bank.
  8   Then he has a First Union at $9,979 and I don't see
  9   that on yours at all.  He has a First Union in his
 10   name.
 11            MS. VARDY:  We were unaware of the
 12   existence of that when we did the sheet, Your Honor.
 13            THE COURT:  Okay.  So that's his account,
 14   you think?
 15            MS. VARDY:  Yes, Your Honor.
 16            THE COURT:  Item C, First Union, $9,979?
 17            MR. SMITH:  I would object to her
 18   statement.  It was provided in the response to
 19   interrogatories as well as a copy of the statements.
 20            THE COURT:  Okay.  But you do feel that's
 21   the amount, Mr. Smith, that's due on that account?
 22            MR. SMITH:  That is correct.

00543
  1            THE COURT:  The right account we're talking
  2   about?  That's your individual account.
  3            MR. SMITH:  I -- if I have it down under
  4   marital.  That's marital.
  5            THE COURT:  You have it under marital debt,
  6   but I'm saying I think that account is in your name
  7   alone.
  8            MR. SMITH:  It is in my name.
  9            THE COURT:  Okay.  That's what I'm trying
 10   to figure out.
 11            MR. SMITH:  Yes, sir.
 12            THE COURT:  Okay.  So that's $9,979 on that
 13   debt.  And then there's the debt of Capital One
 14   which you show is $1,206.
 15            Ms. Vardy, you're asking that be paid as
 16   well?
 17            MS. VARDY:  Yes, Your Honor.
 18            THE COURT:  Okay.  Now, he has got a Chase
 19   Exprise.  This is the one I can't account for.
 20   $11,328.  I didn't see that on yours.
 21            MS. VARDY:  No, it wasn't, Your Honor.  And
 22   again, this had -- I'm sorry.  When I did this that

00544
  1   account that Mr. Smith put on his were used -- was
  2   used for his use only and I would argue that was a
  3   separate debt.
  4            THE COURT:  Was that in addition to the
  5   $9,979 on the First Union account?
  6            MS. VARDY:  Yes, Your Honor.  It's my
  7   understanding that they were used for attorney's
  8   fees and living expenses.
  9            THE COURT:  So her position is the $11,328
 10   should not be paid?
 11            MS. VARDY:  That's correct, Your Honor.
 12            THE COURT:  Okay.  All right.  And her
 13   position also is the $9,979 should not be paid?
 14            MS. VARDY:  That's correct, Your Honor.
 15            THE COURT:  All right.  I think that clears
 16   that up.  We'll proceed with closing arguments then.
 17   Ms. Vardy, you want to go first with any argument
 18   you'd like to make.
 19            MS. VARDY:  Your Honor, I don't know if you
 20   wanted me to present anything more on the motion for
 21   sanctions at this time or what the --
 22            THE COURT:  You can make an argument for

00545
  1   sanctions if you'd like.  In terms of the child
  2   support payment?
  3            MS. VARDY:  The child support payment and
  4   the disobedience to Judge Farris' order concerning
  5   the website.
  6            THE COURT:  Well, I think that we'll go
  7   ahead and proceed on the sanctions consideration
  8   with regards to child support, but I just don't
  9   think that's going to be productive to address the
 10   website.
 11            MS. VARDY:  Okay, Your Honor.
 12            My argument for this, Your Honor, is that
 13   there was an order and that Mr. Smith has
 14   voluntarily been underemployed or unemployed,
 15   depending upon which period we're speaking about,
 16   from the time that he stopped paying or shortly
 17   before then.
 18            Would have been in July of -- I just did
 19   this.  Excuse me while I look at it.  2004.  I'm
 20   sorry.  And that he -- even though he has acquired a
 21   part-time job he has made not even an attempt to pay
 22   $50 a month since he has been employed.

00546
  1            At the time that you ruled on the amount of
  2   child support, the figure of $823 you had imputed to
  3   him and that's going back to your order, pendente
  4   lite order, you had imputed an income of $119,000
  5   because of his prior employment.
  6            He took quite a while to become employed
  7   again once he was home so that he has not really
  8   made an effort to contribute to the taking care of
  9   his son for over a year and a half.  And therefore
 10   we would like the Court at this point to impose some
 11   sanctions upon Mr. Smith for failure to pay child
 12   support.
 13            THE COURT:  Okay.  Any additional argument
 14   you'd like to make with regard to each of the issues
 15   that are upon the decree of divorce and equitable
 16   distribution?
 17            MS. VARDY:  Yes, Your Honor.  Your Honor,
 18   this case has been in the court now for almost four
 19   years, I believe.  We have requested that we go
 20   forward on grounds of separation of one year because
 21   we think those are the best grounds in terms of the
 22   parties' acrimony between them.

00547
  1            And also their son, should he ever want to
  2   see the divorce papers, I think it is in his best
  3   interest that it be granted on that basis.
  4            We have gone through the evidence showing
  5   that in January of 2002 Mr. Smith did by mutual
  6   agreement leave his job.  Whether voluntary or
  7   involuntary, it's not in dispute.  At that time we
  8   have also heard conflicting testimony.
  9            One, that it was somewhat an open-ended
 10   arrangement to see how they could do.  But the
 11   parties' income was then cut approximately in
 12   one half.  And somewhere in the spring, as Ms. Smith
 13   mentioned, the parties were discussing the fact that
 14   they were having difficulties.
 15            Mr. Smith has also testified to the fact
 16   that they were going through their savings in order
 17   to meet their living expenses and maintain the
 18   standard of living they had prior to the time he
 19   left his job.
 20            After that it was from the point of 2002 up
 21   through the fall of 2003 before Mr. Smith obtained
 22   employment, and we maintain that part of that was

00548
  1   because he was being very choosy about his
  2   employment.  So that during that time --
  3            MR. SMITH:  I have to object to that.
  4            THE COURT:  Overruled.  It's her argument.
  5            MS. VARDY:  -- the parties were using their
  6   savings and depleting the marital estate due to the
  7   fact that only one of them was working and that one
  8   was making less money than Mr. Smith had made.
  9            Mr. Smith has also testified that in his
 10   opinion he has been the primary caretaker, yet we
 11   have also heard testimony that for the most part
 12   Liam was in daycare most of the day.  Ms. Smith also
 13   was a caretaker for Liam.
 14            We are not disputing that in the early
 15   years Mr. Smith did contribute and did take care, as
 16   most parents do in a two-parent home, take care of
 17   Liam as a young child.  We would, however, prefer to
 18   focus upon the last two years.
 19            The fact that Mr. Smith took Liam to
 20   Michigan over Christmas vacation I find very
 21   problematic for the following reasons:  One, he did
 22   not give notice to Ms. Smith.  Christmas Day was to

00549
  1   be spent with Ms. Smith that year.
  2            In fact, Ms. Smith was totally shocked when
  3   she got to the apartment and it was empty.
  4   Moreover, Liam was expecting to spend Christmas Day
  5   with his mom.  And he was not able to do that.
  6            We've heard Ms. Smith testify that for Liam
  7   he does remember things and he does plan on them.
  8   And when he is told something is going to happen and
  9   it doesn't happen, it causes confusion for him more
 10   so than other children --
 11            MR. SMITH:  I have to object to that.  She
 12   doesn't know and she's not an expert on it.  That is
 13   not true.
 14            THE COURT:  All right.  I overrule the
 15   objection.
 16            You may proceed with your closing statement
 17   and argument at this time.
 18            MS. VARDY:  In addition, the fact that
 19   Mr. Smith had brought up the question or had the
 20   discussion with Liam about camping during the summer
 21   when he made no attempt to obey the court order in
 22   order to have his visitation rights --

00550
  1            MR. SMITH:  I have to object to that, too.
  2            THE COURT:  Overruled.
  3            MS. VARDY:  -- reinstituted again shows
  4   that Mr. Smith is not thinking of Liam's best
  5   interest.  And how Liam reacts to questions when --
  6   how Liam reacts to situations where he is promised
  7   an event will occur and then it doesn't occur that
  8   way.
  9            It also seems to me that a father who is
 10   stating that his son is so important to him would
 11   try to do whatever was necessary to have time with
 12   that child.
 13            Now, on the other hand I must say that
 14   Ms. Smith is so supportive of Liam's love for his
 15   father and desire to be with his father --
 16            MR. SMITH:  Calling the police and PO, and
 17   police and police and police --
 18            THE COURT:  Mr. Smith, if you're going to
 19   make an objection I'll ask you to stand and make the
 20   objection.  But don't sit there and make comments,
 21   all right?
 22            MR. SMITH:  Okay.  I would like to object.

00551
  1   That is the most ridiculous thing --
  2            THE COURT:  Overrule your objection.
  3            MR. SMITH:  -- I have ever heard in my
  4   life.
  5            THE COURT:  Overrule your objection,
  6   Mr. Smith.
  7            MR. SMITH:  She has repeatedly done police,
  8   police, protective orders.  There is almost no way
  9   in the world short of killing our son she could be
 10   less supportive of him having a relationship with me
 11   with the exception of lunch and the evening
 12   yesterday.
 13            THE COURT:  Go ahead, Ms. Vardy.
 14            MS. VARDY:  You have made my point for me,
 15   Mr. Smith.
 16            MR. SMITH:  You're welcome.
 17            MS. VARDY:  Yesterday, Your Honor, while we
 18   were still under the order, the current order which
 19   suspends Mr. Smith's visitation, Ms. Smith did ask
 20   him to bring the issue up to you to ask if you
 21   would -- if the Court would allow Liam to spend the
 22   night with his father because Liam really wanted to

00552
  1   spend the night with his father and he misses him.
  2            Ms. Smith has tried very hard because she
  3   believes that it is in Liam's best interest to have
  4   a relationship with his father.  However, we do not
  5   believe that relationship includes custody.  And we
  6   do not believe that because of the problems that
  7   have arisen in the past in terms of trying to do
  8   what is the best for Liam in school situations and
  9   in domestic situations.
 10            And as Ms. Smith has testified, whenever
 11   there has been a discussion of whether things could
 12   be worked out, Mr. Smith first puts down the
 13   condition that he feels she must abide by before a
 14   discussion can even take place.
 15            MR. SMITH:  I have to object.  That's just
 16   the opposite.  She always puts down the condition we
 17   not discuss past history -- about past history.  I
 18   got no relationship with her.  There's nothing to
 19   discuss.
 20            THE COURT:  Evidence in the case.  I
 21   overrule the objection, sir.
 22            MS. VARDY:  Sorry, I lost my place.  I'm

00553
  1   sorry.  I just lost my place.  Okay.
  2            Because of Liam's special needs, and I
  3   think that was clear from Dr. Behrmann's report and
  4   Mr. Fahy's report, someone has to be able to make
  5   decisions without conflict as far as Liam's therapy,
  6   as far as his schooling, basically as far as his
  7   daily needs go.
  8            And this is why we're asking for sole legal
  9   and physical custody for Liam.  We do believe,
 10   again, that Ms. Smith is able to provide a more
 11   stable environment for him in that she is consistent
 12   in what she wants for Liam.
 13            She is looking to give Liam the best
 14   foundation he can have yet she is flexible enough
 15   that if one route isn't working she will try to work
 16   around the problem.  She will seek assistance from
 17   others.
 18            Again, as for the equitable distribution we
 19   are asking, since Mr. Smith has already received
 20   over $50,000 and is in arrears --
 21            MR. SMITH:  Objection.  I did not receive
 22   it.  They went to great lengths to make sure I did

00554
  1   not receive it.  It went to my mother after I
  2   defaulted.
  3            MS. VARDY:  It went to Mr. Smith's mother
  4   to pay for the default on Mr. Smith's loan.
  5            And in addition to the fact that Ms. Smith
  6   had to carry the mortgage and her rent for which she
  7   had to take the loans and she had to pay other
  8   bills, plus Mr. Smith had not obtained employment,
  9   and the fact there are no other assets left because
 10   they were living on their savings during the period
 11   of [sic] Ms. Smith was working.
 12            And that is the reason we are asking for
 13   the remaining net proceeds to be awarded to
 14   Ms. Smith.  Also to partially cover the arrearage in
 15   child support.  And I am also asking for attorney
 16   fees and I have the attorney fees affidavit.  We
 17   have asked for that in our original.
 18            THE COURT:  You want to submit your
 19   affidavit?
 20            All right.  If you would mark that the next
 21   exhibit on behalf of the plaintiff.
 22            MS. VARDY:  And Your Honor, I -- if the

00555
  1   Court determines to award visitation I only ask that
  2   the Court -- I ask the Court's guidance in the
  3   wordings since the wording has been problematic for
  4   agreements between the parties as to what the order
  5   means.  So I would end on that point.  Thank you.
  6            THE COURT:  All right.  Closing statement
  7   on behalf of the defendant, Mr. Smith.
  8            MR. SMITH:  I'll repeat my objection that
  9   this Court cannot grant it on a one-year separation.
 10   And the Court of Appeals has consistently ruled that
 11   inappropriate for a case such as ours.
 12            However, there is the ground of adultery,
 13   which the plaintiff has admitted to.  And per my
 14   research that is acceptable even if it occurs after
 15   you have a proposed final order created.  I'm not
 16   sure why, but apparently that's legal.
 17            I also object to jurisdiction as I filed my
 18   motion to -- this Court does not have jurisdiction
 19   to hear the case at all.  And therefore I object to
 20   that.
 21            And in terms of the job.  We had agreed
 22   that I would quit work and I would -- we would be

00556
  1   spending our savings as we both planned on.
  2   Spending actually increased quite a bit.  My wife
  3   agreed in writing and even put that I should tell
  4   people to mind their own business when they said I
  5   should be working, that she doesn't want me in a
  6   dead-end job.
  7            MS. VARDY:  I'm going to object.  That was
  8   not in --
  9            THE COURT:  There's no evidence to that
 10   effect.  I'll sustain the objection.  You have to
 11   argue what the facts are before the Court.
 12            MR. SMITH:  Remember that three-inch pile?
 13   It's in there.
 14            THE COURT:  Okay.  You have to argue the
 15   facts before the Court.
 16            MR. SMITH:  We have been in court at the
 17   choice of my wife instead of accepting an offer of
 18   equal custody and splitting the money equally in
 19   2002 when she decided to file a protective order on
 20   false grounds, which has been ruled false.  That is
 21   significantly showing that she is unwilling to
 22   corporate to raise our son.  That is horrible

00557
  1   behavior.
  2            And she has continued to do that by failing
  3   to follow the visitation order, calling the police
  4   when my son wants to spend time with me in violation
  5   of the court order, calling CPS to file false
  6   complaints.  She has been horribly uncooperative.
  7            Alternating, oddly enough, which is typical
  8   for her with allowing him to spend time with me,
  9   even filing a motion to allow me to take him out of
 10   state for which she was absolutely adamant just a
 11   couple months previously.
 12            It is that type of behavior that is very
 13   confusing to my son, where she's calling me a sick
 14   man and calling the police repeatedly and then
 15   turning around and saying, Oh, go ahead and have
 16   some time with him; it's your time take him out of
 17   state.
 18            Our son deserves better than that.  He
 19   deserves to spend time with both of us.  And you may
 20   not like me but I'm blunt and I have supported his
 21   relationship and would do so if I had custody.
 22            He would have access to both of us.  He

00558
  1   would have -- be in that kind of position arguing
  2   about calling the police and stuff because I have
  3   never not supported that.  I have asked that she
  4   deal with her anger problems because that's a risk
  5   for him.  But regardless of her misconduct my son
  6   has a right to see both of us.  Or due to my
  7   misconduct.  He's a wonderful child.
  8            The Court has no legal authority to deprive
  9   him of a parent-child relationship with both of us.
 10   I started off asking only for equal custody because
 11   that's fair and appropriate in spite of my belief
 12   she has mental-health problems.  It's not her fault
 13   she has them; they're hereditary.
 14            But because of her misconduct and refusal
 15   to follow the court orders and continuing calling
 16   the police combined with the refusal of this Court
 17   to enforce the visitation appropriately, I have
 18   changed my request to sole custody.
 19            But in general I don't think sole custody
 20   should even exist.  This Court should be limited to
 21   minimal interference it needs to make it work.  But
 22   the focus on this Court has solely been to punish

00559
  1   one party or the other and notoriously known for
  2   only wanting to punish the father.  But that's
  3   inappropriate.
  4            The court should be focused on, how do you
  5   make it work?  You have a parent-child relationship
  6   with two people should be trying to make it work
  7   with both of them.
  8            I could provide him a stable home life with
  9   my brother's family where he has space, where he
 10   could be in a small classroom.  His class would only
 11   be 14 students.  For years we have fought with the
 12   school district and they repeatedly say they want
 13   him in a small setting.  There is no other choice in
 14   Pulaski County other than a small setting.
 15            He would never be in daycare.  Since I
 16   could see him during the daytime I would have no
 17   objection to her seeing him every night.  And I
 18   could go with him to school.  If he has behavior
 19   problems, I would be happy to go with him to school
 20   to help take care of him.
 21            And over his entire lifetime Liam has
 22   always behaved better for me than for her.  She

00560
  1   would ask me to hold him to put him to sleep because
  2   he would go to sleep faster if I held him as opposed
  3   to her.
  4            And then him screaming, which I've heard on
  5   the telephone at her, and hitting are extremely rare
  6   with me because I do not respond to things.  She
  7   gets him to attest to whittle with him and has ever
  8   since age two.  I do not.  I work with him with
  9   encouragement and that goes much better.  I do not
 10   yell at him like she does.  I stick with
 11   encouragement and he responds much better to that.
 12            Now, on occasion he will try what he does
 13   with her and hit or something, which she smacks him
 14   back, and with me --
 15            MS. VARDY:  Your Honor --
 16            MR. SMITH:  -- I'm very patient and he
 17   responds so much better to that.  I just tell him if
 18   he wants attention to come and ask for a hug.  And
 19   it's hilarious when he does it.  It's very cute.
 20   When instead of throwing temper tantrums he will
 21   come over and just ask for a hug and ask for
 22   attention.  He's an adorable little boy.

00561
  1            The fact that under her supervision,
  2   especially with visitation cut off, that such a
  3   sweet, adorable child is having such behavior
  4   problems at school clearly shows that she is not
  5   adequately caring for him.
  6            And she can't because she keeps alternating
  7   it.  It's confusing.  Her approach is not
  8   appropriate.  But at least if he's spending a lot of
  9   time with both of us that gives him some stability
 10   and evens it out a bit.
 11            THE COURT:  Anything else you want to say,
 12   Mr. Smith?
 13            MR. SMITH:  Well, I will repeat my
 14   objection to this being heard in the Court I --
 15   without a jury.  Every attorney I've consulted has
 16   told me that I'm wasting my time, that I've got a
 17   snowball's chance in Hell.  They don't even ask
 18   about the facts.  They ask, Who is the judge, and
 19   you tell them it's Judge Potter they say, You will
 20   lose.
 21            And it is inappropriate for a judge with
 22   that reputation.  Whether or not you agree with it,

00562
  1   that's irrelevant.  According to the rules a judge
  2   with that type of reputation should not hear the
  3   case.  And I brought that up and you should have
  4   recused yourself.
  5            But any case, we've been in court for four
  6   years, and as I suspect the ruling you'll make is to
  7   continue giving my wife control, which she has
  8   problems with.  And we will just still be in court.
  9            You object to the 8 folders.  Next year it
 10   will be 10.  The year after it will be 12.  The only
 11   way it's going to get us out of that is give me
 12   control because I'm not a control freak.  I want to
 13   take good care of my son.
 14            If I had custody I don't care if I actually
 15   saw him 51 percent of the time versus 49.  I want to
 16   make sure he is taken care of well.  I would just as
 17   soon not have to track what days we have him.  But
 18   if you give him to her, as we've seen, she calls the
 19   police when I exercise appropriate visitation.  She
 20   doesn't comply with the order.  She has got
 21   problems.
 22            The best way to deal with that is accept

00563
  1   she cannot comply with the order.  We need an order
  2   that addresses the fact that, A, I don't give in to
  3   BS and she can't comply with the orders, which would
  4   be an order that allows me to see him a lot of time
  5   so if she shows up and says, Hey, I want to see him,
  6   so if I have a lot of contact with my son it's going
  7   to be a lot easier to just humor her.
  8            THE COURT:  Okay.  Thank you, sir.
  9            This Court has to make certain findings
 10   then enter an order.  We want to go ahead and set a
 11   date down for an entry of the order.  Ms. Vardy,
 12   I'll ask you to prepare a court order that should
 13   reflect the Court's rulings.  I'm going to make
 14   several findings, as you know, of facts before we
 15   get to the ruling.  So the order need only reflect
 16   the rulings of the Court.
 17            We need to go ahead and set a date down for
 18   entry of the order.  I would suggest June 9th as an
 19   appropriate date at 10:00 if you have that available
 20   to you.
 21            MS. VARDY:  Your Honor, I believe that it
 22   is.

00564
  1            MR. SMITH:  What day of the week is that?
  2            THE COURT:  We enter orders on Fridays on
  3   motions day.  It's a 30-minute limitation, 15
  4   minutes for each side.  Order is prepared by
  5   counsel.  A copy will be mailed to you, Mr. Smith,
  6   and a copy to the Court who will review it
  7   beforehand, and then we'll come to court and enter
  8   any -- entertain any argument you'd like to make to
  9   the entry of the order that day.
 10            MS. VARDY:  Your Honor, do you also want
 11   Mr. Fahy to receive a copy of it?
 12            THE COURT:  Yes.  The guardian ad litem
 13   should get a copy.  Is that a good date for you,
 14   then, June 9th for entry?
 15            MS. VARDY:  Yes, Your Honor.
 16            THE COURT:  Okay.  Let me make the factual
 17   findings that I have to make.  And I will make them
 18   accordingly.
 19            Number 1, the plaintiff in this case was
 20   born on February 4th, 1969.  She's 37 years of age.
 21   She has a master's degree.  Her employer is Science
 22   Application International.  She's employed there as

00565
  1   a program manager.  She has been for approximately
  2   five years.  The Court finds that her income on a
  3   monthly basis is $6,325 per month for $75,900 per
  4   year.
  5            She has testified she's in good physical
  6   and mental health.  She has testified that she has
  7   some birth-control medications.  I think that's the
  8   only medication she said she was on.
  9            As to the issue of her mental health, the
 10   only report before this Court is that she is in good
 11   mental health.  Despite the argument made in this
 12   case this Court finds no evidence whatsoever that
 13   she is not in good mental health.
 14            She has had a history of taking some
 15   medications which may be involved with mental-health
 16   care.  She has never had a diagnosis of any mental
 17   illness or disease.  And in fact, it was prescribed
 18   by a general practitioner not by -- she has not seen
 19   a psychiatrist or psychologist.  Has never been
 20   institutionalized.  No evidence to believe that she
 21   is in any way mentally ill.
 22            She has insurance for herself through Aetna

00566
  1   through her employer.  Covers, she said, a family
  2   plan, I believe both the plaintiff and defendant and
  3   the child of the parties.
  4             The current address is the 1533 Lincoln
  5   Circle, apartment 104, McLean, Virginia.  She has
  6   resided, I believe she said, since July of 2004.
  7   She resided prior to that address on the Manassas
  8   Mill Apartment address in Manassas, Virginia, on
  9   June 13, '03.
 10            These parties were married on November 23,
 11   1988, and that was in Utah.  Liam was born on
 12   July 27th, 1997.  Liam is now eight years old.  He
 13   is in the second grade at Spring Hill Elementary
 14   School.
 15            The evidence is that Liam has Down
 16   Syndrome, that he has received special education and
 17   treatment for his Down Syndrome.  He's currently
 18   involved in and has numerous IED meetings and plans
 19   prepared for him -- IEPs, rather -- so he can
 20   address his Down Syndrome in terms of his education.
 21   Both parents from time to time have participated in
 22   that process.

00567
  1            The evidence of separation is the plaintiff
  2   takes the position they were separated on
  3   September 17th, 2002.  That would make a separation
  4   of some -- marriage rather a duration of some
  5   14 years and 1 month based on the finding of the
  6   Court.  I say that because she feels they were
  7   separated on September 17th, 2002.
  8            The evidence is -- and I'll go through the
  9   complete history in just a minute, but the evidence
 10   is there was an altercation on the 16th and the
 11   17th, and as a result of that there was an effort
 12   for a temporary protective order and then a
 13   permanent protective order, et cetera, which I will
 14   review later.
 15            Then that effect is there has been no
 16   sexual relations and no relationship as man and wife
 17   since September 17th, 2002.  The evidence was that
 18   the husband then moved out in November and December.
 19   Moved to Michigan initially without her knowledge.
 20   Obviously she found out about it sometime after.
 21            He then returned back in December -- I
 22   believe it was December 28 he comes back into the

00568
  1   household.  But again the parties did not enter into
  2   any relations as man and wife and so they remained
  3   separate and apart during that period of time
  4   although physically living under the same roof.  And
  5   they would alternate he would move out one night,
  6   she'd move out, et cetera.
  7            There was a desire on his part not to have
  8   both of them remain under the roof at the same time.
  9   Eventually the parties -- the testimony was that by
 10   December of 2002 when he moved out, she had
 11   formulated the intent that the separation was a
 12   permanent separation.
 13            The testimony was that sometime in December
 14   it was corroborated, and without giving a date it is
 15   the practice to always insert the last day of the
 16   month.  So this Court will find the date of
 17   separation which has been corroborated and proven by
 18   the evidence in this case to be December 31, 2002.
 19            So the parties have remained apart since
 20   that time period without cohabitation, without
 21   interruption.  And as the record will indicate, it
 22   has been a litigious process with the parties to get

00569
  1   down to this point.
  2            The complainant for -- I guess that's all I
  3   needed to say about the young man.  He's in school.
  4   He does well in school.  The teachers have testified
  5   as to his involvement in school.  Nothing seems to
  6   be out of the ordinary for someone with his
  7   condition.
  8            While he struggles with his condition and
  9   the issues that it creates for his life, the
 10   evidence is that the mother's attentiveness and care
 11   of Liam as a primary child-care provider has been
 12   excellent and his needs are being met.
 13            The defendant for his part was born
 14   May 26th, 1965.  40 years of age.  Has a BS degree.
 15   Works at Quality Inn Christiansburg.  He works as a
 16   night clerk.  The Court finds that he earns -- works
 17   16 hours at $7, I think he said.  Works out to about
 18   $480 a month.
 19            And the Court finds as it did earlier that
 20   he is willfully underemployed.  I don't have to tell
 21   him, I'm sure he's aware of the fact that he has got
 22   competence and technical training and education to

00570
  1   have a much better income than he has.
  2            His own testimony was that when he stopped
  3   to take care of Liam he was making between $85,000
  4   to $90,000 -- or excuse me.  Yes, $85,000 to $90,000
  5   was his testimony.  And the Court will address the
  6   imputation of income at the time I address the child
  7   support issues.
  8            The Court has heard testimony from the
  9   complainant about the health-insurance cost, which I
 10   determined to be $75 a month, and the child-care
 11   cost totaling $342, I believe.  The record will show
 12   the breakdown of that both in the summertime and
 13   during the school year.
 14            He resides in Dublin, Virginia, in his
 15   brother's home in the apartment in the basement.
 16   It's a one-bedroom apartment.  It's clear that he
 17   has limited physical arrangements for the care of
 18   Liam on a regular basis.  In the sense that Liam
 19   doesn't have a separate bedroom, and this may --
 20            MR. SMITH:  I have to object, Judge --
 21            THE COURT:  -- become an issue --
 22            MR. SMITH:  -- I testified that my

00571
  1   brother --
  2            THE COURT:  Mr. Smith, it's my turn.  My
  3   turn to talk.  Don't interrupt me, okay?  I put up
  4   with a lot of that for the past two days.  I'm not
  5   going to put up with any more of your notions.  It's
  6   my turn to enter my order.
  7            I find that the physical surrounding is
  8   inaccurate for Liam and it needs to be improved.
  9   And I would hope that you would take steps to
 10   provide a suitable arrangement for Liam.  That does
 11   not mean it's not appropriate for you to have
 12   overnight visitations.
 13            This Court has ordered you to have
 14   overnight visitations quite frankly when you're
 15   living in living conditions that weren't as good as
 16   you're in now.  But I have a concern about those
 17   physical limitations that you need to be aware of.
 18   You need to put Liam's best interest to the
 19   forefront here and not that of your own.
 20            All right.  I want to review factually and
 21   procedurally how this case has reviewed as simply as
 22   I can without going into a great deal of detail.

00572
  1            Number 1, as I noted, the parties were
  2   married on November 23, 1988.  Secondly, on July 22,
  3   1997, Liam was born.  Thirdly, the parties separated
  4   according to the finding of this Court on
  5   December 31, 2002.  Four, on or about September 16th
  6   through the 17th, 2002, there was an altercation
  7   between the parties.
  8             Five, on September 17th, 2002, there was a
  9   preliminary protective order entered in the Juvenile
 10   and Domestic Relations District Court of Prince
 11   William County which provided the plaintiff
 12   exclusive use of the marital residence.
 13            Six, on October 1st, 2002, there was an
 14   order entered by the Juvenile and Domestic Relations
 15   Court which denied the plaintiff's petition for
 16   permanent protective order.  Seven, from October 1
 17   to October 21 the defendant, as I said earlier, was
 18   separated for a period of time and they lived
 19   separately in the household during that period of
 20   time.
 21            From October 21, '02 -- that would be
 22   number 8.  October 21, '02, there's a temporary

00573
  1   custody order entered in Juvenile and Domestic
  2   Relations granting custody to the plaintiff.
  3   Number 9, on November 1, 2002, the defendant left
  4   without notice to the plaintiff and by
  5   December 28th, 2002, returned to the marital
  6   residence from Michigan.
  7            Number 10, on February 4th, 2003, there was
  8   an agreed order for temporary visitation entered in
  9   Juvenile Court and that order was granted by the
 10   Court that gave the parties use of particular areas
 11   in the household.  So that they might live separate
 12   and apart within the marital residence.
 13            Number 11, May 13, 2003, there was a
 14   temporary custody order granting joint legal custody
 15   to the parties with the plaintiff determined to be
 16   the primary-care provider and physical-care provider
 17   of the child under that order.
 18            Number 12, August 4, 2003, there is a J&D
 19   order.  And June 11th -- number 13, June 11th, 2003,
 20   bill of compliant was filed up in Circuit Court as
 21   opposed to Juvenile Court.
 22            Number 14, on September 9, 2003, there was

00574
  1   an answer in cross-bill filed by defendant by
  2   counsel the bill of complaint.  There was also
  3   argument that he didn't receive personal service.
  4   It was clearly waived based on his appearance
  5   through his counsel by answering the cross-bill.
  6   On -- 15, on October 1, 2003, the plaintiff filed an
  7   answer to the defendant's cross-bill.
  8            16, on October 2nd, 2003, there was a
  9   pendente lite decree entered by the Court in which
 10   the plaintiff was granted sole custody and the
 11   defendant was granted extensive -- and that's my
 12   term, but extensive visitation with the child.  I
 13   can go through the alternating weekends and
 14   holidays, but I think the order speaks for itself.
 15            17, on December 12, 2003, there was an
 16   order entered by the Court as well which had to do
 17   with the escrowing of the funds.  I think the point
 18   was that was the settlement of the marital residence
 19   and the funds were escrowed from and held by counsel
 20   for the defendant.
 21            Number 18, on March 21, 2004, Plaintiff
 22   filed an amended bill of complaint.  And that

00575
  1   alleged three grounds.  Count 1 was cruelty.
  2   Count 2 was constructive desertion.  And count 3 was
  3   one-year separation or a separation.
  4            Number 19, on March 17th, '04, the
  5   defendant filed an answer to the amended cross-bill
  6   by counsel.  And his cross-bill provided for a
  7   request of divorce on three grounds.  Count 1 was
  8   adultery.  Count 2 was desertion.  Count 3 was
  9   constructive desertion.
 10            Number 20, on March 19, 2004, there was a
 11   pendente lite order appointing a guardian ad litem,
 12   Mr. Fahy.  Number 21, on April 9, 2004, the
 13   defendant filed his amended answer in cross-bill to
 14   the amended bill of compliant.
 15            Number 22, on September 23, '04, there was
 16   a pendente lite order by Judge Farris which had to
 17   do with disparaging remarks made by the defendant
 18   towards the plaintiff, in an attempt to limit those.
 19   Number 23, on October 29th, 2004, there was
 20   Defendant's petition for appeal with the Court of
 21   Appeals.
 22            Number 24, January 3, '05, there was an

00576
  1   order of temporary spousal -- temporary support and
  2   that order was entered by Judge Alston.  Temporary
  3   suspension of visitation.  I apologize.  I can't
  4   read my own handwriting.
  5            On January 3, '05, there's an order of
  6   temporary suspension that was at an ex parte hearing
  7   entered by Judge Alston.  The case was continued to
  8   the 18th for a hearing.
  9            25, on January 18th, 2005, there's a
 10   pendente lite order entered by Judge Millette, this
 11   suspended visitation in view of the incident over
 12   Christmas.  And based, as he said, on the
 13   requirements of the recommendation of the guardian
 14   ad litem and two conditions were placed on the
 15   defendant before visitation would continue.
 16            26, on July 5, '05, the Court of Appeals
 17   entered an order denying the Appeals finding that
 18   the order of Appeals was not a final decree.  27, on
 19   February 15th, '06, there was a hearing in the
 20   Court.  Plaintiff's and Defendant's motions, some
 21   36 motions all together.  Separate motions were
 22   ruled upon by this Court.

00577
  1           And 28, today's date, on the 22nd and 23rd
  2   we have proceeded with trial.  And I suppose 29 will
  3   be entry of the final decree which is now set for
  4   the June date.  We set it for June the 9th at 10:00.
  5            All right.  As you know the statute
  6   requires this Court make certain findings based on
  7   the factors contained on the Code of Virginia,
  8   specifically on the issue of maintenance and support
  9   of the spouse.  And I will say in this case that the
 10   plaintiff has withdrawn any request for spousal
 11   support.
 12            The defendant, on the other hand, has made
 13   a motion for spousal support.  And the Court is to
 14   consider certain requirements under that Code
 15   section.
 16            These requirements are not unlike the Code
 17   section found under 20-107.3 which have to do with
 18   equitable distribution.  And I think the easiest
 19   thing to do is go through the factors which do
 20   somewhat overlap and report the findings of this
 21   Court as to these different factors.  I have to do
 22   that one at a time.

00578
  1            I'll start with 107.3, subparagraph E,
  2   paragraph 1.  The contributions monetary and
  3   non-monetary of each party of the well-being of the
  4   family.
  5            The Court has reviewed the work history of
  6   these parties.  Part-time employment of the
  7   defendant -- of the plaintiff, rather, up until the
  8   time Liam was born in '97, and she received her
  9   master's in December of 2000 and began working where
 10   she's currently employed in January 2002.
 11            Has a stable income and is the only one of
 12   the two that has -- has demonstrated financial
 13   stability and ability to support Liam.  And she
 14   continues to hold that job, as I say, for some five
 15   years now.
 16            I find her monthly income, as I noted
 17   before, to be $6,325 or $75,900 per year.  She has
 18   made non-monetary contributions to the marriage as
 19   well and took care of the child, as she testified.
 20            The defendant as well testified that he
 21   made monetary contributions and, in fact, was
 22   employed earning $85,000 to $90,000 a year.  And we

00579
  1   went through his work history as well.  CSC and then
  2   he stopped work to take care of Liam.  Although Liam
  3   was born in '97 he didn't stop work until 2002 and
  4   just prior to the separation of the parties.
  5            He also made non-monetary contributions in
  6   the marriage in terms of the care of the child and
  7   the care of the household and property.
  8            Number 2, the contributions monetary and
  9   non-monetary of each party in the acquisition, care
 10   and such marital property of the parties.  The Court
 11   will review the issues of that in equitable
 12   distribution in just a moment.
 13            But the parties obviously were able to
 14   acquire real estate, their marital residence, which
 15   has now been sold.  And personal property which has
 16   now been divided by the parties.
 17            Number 3, the duration of the marriage.
 18   The Court noted they were married November 23, '88,
 19   and made a finding they were, in fact, separated on
 20   December 31, 2002.
 21            Number 4, the ages and physical, mental
 22   condition of the parties.  We've talked about

00580
  1   Mr. Smith's physical and mental condition.  He said
  2   he was in good physical condition.  Good mental
  3   condition.
  4            His conduct throughout this process has
  5   been somewhat irrational.  I think it reads [sic]
  6   the guardian ad litem and his report to question the
  7   mental stability of Mr. Smith to continue to provide
  8   care for his child.
  9            The Court has concerns about that.  The
 10   Court has had them in the past and the courts have
 11   ordered the parties to be evaluated.  And they have
 12   submitted their evaluations to this Court for
 13   review.  I think it's clear that the ultimate
 14   finding is that neither party is mentally ill, if
 15   you will, or suffers from any mental disease.
 16            I think the evidence has been, as I noted
 17   with regard to the plaintiff, that she has been on
 18   some medication before there was a period of time
 19   given the conflict in this marriage in which she was
 20   under a great deal of stress.
 21            I find that the continued conduct of the
 22   defendant having been separated since December of

00581
  1   '02 and to this day, there's a great deal of anger
  2   and animosity towards the plaintiff, has really
  3   interfered with his ability to make a rational
  4   decision in terms of assisting Liam and providing
  5   for the best interest of Liam.
  6            He loves his son.  I don't doubt that.  I
  7   think that both parties clearly love their child.
  8   And they want to see the best for their child.  A
  9   lot of his actions certainly fall into question, his
 10   ability to maintain and continue custody visitation
 11   for this child.
 12            Number 5, the circumstances and factors
 13   which contributed to the dissolution of the
 14   marriage, specifically including any ground for
 15   divorce under the provisions of subdivisions 1, 3 or
 16   6 of 20-91 or 20-95.
 17            The Court finds the parties have been
 18   separate for a period of more than one year without
 19   cohabitation, without interruption.  As I'll do in
 20   just a minute I'll award the divorce to the
 21   plaintiff on the grounds of that one-year
 22   separation.

00582
  1            Any other grounds alleged by the plaintiff
  2   have not been proven.  In fact, she has withdrawn
  3   the other counts contained in her amended motion for
  4   judgment.  On the other hand, the defendant has
  5   raised three grounds and has presented argument,
  6   limited evidence, but no corroboration of any of the
  7   three grounds, and therefore the cross-bill filed by
  8   the defendant will be denied.
  9            MR. SMITH:  I have to object.  You don't
 10   think the plaintiff admitting to adultery is
 11   corroboration?
 12            THE COURT:  My turn to overrule your
 13   objection, Mr. Smith.
 14            In terms of the circumstances and factors
 15   that contributed to the dissolution, clearly there
 16   was a lot of animosity.  There was testimony of both
 17   physical abuse and arguably perhaps mental abuse in
 18   terms of the tone of their arguments and the
 19   evidence of their arguments.
 20            But it was not a regular course of physical
 21   abuse established by either party, was not extensive
 22   or severe physical abuse.  It certainly did not help

00583
  1   and maintain the well-being -- was not a positive
  2   contribution to this marriage.
  3            I do find that by the time the plaintiff
  4   developed a relationship with a third -- any third
  5   party it was well after the marriage between these
  6   two parties have been dissolved in terms of their
  7   marital relationship.
  8            Number 6, how and when specific items of
  9   such marital property were acquired.  The Court will
 10   go through that on equitable distribution.  Number
 11   7, the debts and liabilities.  The Court will go
 12   through that.
 13            Number 8, the liquid or non-liquid
 14   character of all marital property.  The Court has
 15   reviewed that and will review that based on the
 16   equitable-distribution worksheets presented by the
 17   parties.
 18            Number 9, the tax consequences of each
 19   party has been addressed and will be addressed.
 20   There is no evidence presented by either side in
 21   regards to tax consequences, short and safe the
 22   allegation presented by the plaintiff with regards

00584
  1   to tax refunds on the equitable distribution
  2   worksheet.
  3            Number 10, the use or expenditure of
  4   marital property by either of the parties for a
  5   non-marital separate purpose or dissipation of such
  6   funds.  There has been no evidence of that in this
  7   case.
  8            In terms of comparing that to the
  9   requirements under 20-107.1, it requires first the
 10   obligations, needs and financial resources of the
 11   parties, included but not limited to the income from
 12   all pension, profit-sharing or retirement plans of
 13   whatever nature.
 14            And quite frankly, the income and expenses
 15   of the parties has come in through evidence, first
 16   of Exhibit 1, the income expense statement by the
 17   plaintiff.
 18            The defendant, on the other hand, offered
 19   no income expense statement, and the only evidence I
 20   have based on his testimony is to the effect that he
 21   has -- he makes more money than his expenses given
 22   his current living situation.  So he has the ability

00585
  1   to pay child support and to bear other expenses.
  2            To the standard of living established
  3   during the marriage.  The parties indicated that in
  4   essence it's the finding of the Court that they're a
  5   middle-income family.  They were able to acquire a
  6   marital residence, real estate, personal property.
  7            At one point they were both working and
  8   then one worked and the other worked.  They both
  9   have made non-monetary and monetary contributions to
 10   the family.
 11            But I do think, although the plaintiff
 12   testified she felt to have little impact, I do think
 13   it's clear that by the end of 2002 the fact that
 14   there was only one bread-winner, if you will, in the
 15   family imposed some difficult financial issues to
 16   these parties which added to their stress and
 17   inability to resolve some of their marital issues.
 18            The Court has reviewed the duration of the
 19   marriage, the age and physical and mental condition
 20   of the parties, the extent to which age, physical or
 21   mental condition or special circumstances of any
 22   child would make it appropriate that a party not

00586
  1   seek employment outside of the home.
  2            The evidence is here that this child goes
  3   into daycare on a regular basis, even in his current
  4   setting.  So it simply is not necessary for either
  5   party to stay at home with this child 24 hours a
  6   day.  That's the reality of the life of this child.
  7            Number 6, the contributions, monetary and
  8   non-monetary of each party.  And the Court has
  9   reviewed that.  Number 7, the property interests of
 10   the parties.  The Court will review as part of
 11   equitable distribution.
 12            Number 8, the provision made with regard to
 13   the marital property under equitable distribution.
 14   Number 9, the earning capacity including the skills
 15   education and training of the parties.  The Court
 16   has reviewed that.  The present employment
 17   opportunities for persons possessing such earning
 18   capacity.
 19            Number 10, the opportunity or ability of
 20   and the time and costs involved for a party to
 21   acquire the appropriate eduction, and training.
 22   There has been testimony to the effect the defendant

00587
  1   did assist the plaintiff in obtaining her master's
  2   degree.  There has been no evidence whatsoever
  3   offered by the defendant to demonstrate on his part
  4   to obtain full-time employment.
  5            Number 11, the decisions regarding
  6   employment, career, economics, education and
  7   parenting arrangements made by the parties during
  8   the marriage and their effect on present and future
  9   earning potential, including the length of time one
 10   or both of the parties have been absent from the job
 11   market.
 12            Technically, I think the -- the only
 13   absence from the job market would have occurred in
 14   2002 when he stopped working where he was and begun
 15   again by the time they had separated when he
 16   recognized that they were physically going to
 17   separate by the end of the year.
 18            Number 12, the extent to which either party
 19   has contributed to the attainment of education,
 20   training, career.  I've noted that.  Number 13, such
 21   other factors including the tax consequences.  The
 22   Court has addressed that.

00588
  1            All right.  Having addressed the procedural
  2   aspect and the factual findings of the Court, the
  3   Court will make the following rulings in this case.
  4            Paragraph number 1, divorce.  First, upon
  5   considerations of the totality of the circumstances
  6   in the law of the Commonwealth of Virginia, this
  7   Court orders that the plaintiff is hereby granted a
  8   divorce from the defendant on the grounds that the
  9   parties have lived separate and apart without
 10   cohabitation, without interruption for a period of
 11   more than one year since December 31, 2002, in
 12   accordance with Virginia section 20-91.9a as amended
 13   in the motion made by the plaintiff.
 14            In addition, given the facts of the case
 15   and the lack of any corroborating evidence or
 16   sufficient evidence on behalf of the defendant to
 17   support the defendant's cross-bill, the said
 18   cross-bill is denied.
 19            Number 2, spousal support.  In
 20   consideration of the evidence presented, the
 21   totality of the circumstances and the law of this
 22   Commonwealth, including but not limited to Virginia

00589
  1   Code section 20-107.1 as amended, the Court orders
  2   that the plaintiff has not sought spousal support so
  3   none shall therefore be ordered for the plaintiff.
  4            And Defendant's motion for spousal support
  5   is without sufficient foundation and therefore is
  6   denied without reservation.
  7            Paragraph 3, child custody.  In
  8   consideration of the evidence presented to this
  9   court and the totality of the circumstances and the
 10   law of this Commonwealth, including but not limited
 11   to factors and considerations contained in Virginia
 12   Code section 20-107.2 and 20-124.3 ad sec as
 13   amended, and upon the recommendation of the guardian
 14   ad litem and after argument of counsel, it's
 15   therefore a judged order in decree that the
 16   plaintiff be granted sole custody of the child, Liam
 17   Smith, and that the defendant be granted certain
 18   visitation rights as ordered by this Court.
 19            Number 4, child visitation.  The defendant
 20   is hereby awarded reasonable visitation as follows:
 21   Paragraph number 1, weekend visitations.  The
 22   defendant shall have visitation with the child the

00590
  1   first full weekend of each month from 10:00 p.m. on
  2   Friday until 5:00 p.m. on the following Sunday of
  3   each month beginning on June 2nd, 2006.
  4            Number 2, Monday holidays.  In the event
  5   that a federal holiday falls on a Monday and the
  6   child's school is closed on that Monday, the
  7   alternating -- or the weekend visitation, rather,
  8   referred to in paragraph 1 shall be extended to
  9   5:00 p.m. on the Monday holiday.
 10            Number 3, spring Break.  The defendant
 11   shall have alternating spring break or Easter
 12   vacations with the child.  These visitations will
 13   run from 10:00 p.m. on the last day of school for
 14   the child before the vacation until 9:00 p.m. the
 15   day before school is to begin again.
 16            The defendant shall have the spring-break
 17   visitation for the year 2007 and the plaintiff shall
 18   have the spring-break visitation for 2008, and the
 19   parties shall alternate this visitation each year
 20   thereafter.
 21            Paragraph 4, summer vacation.  The
 22   defendant shall have visitation with the child for

00591
  1   two weeks during each summer school vacation.  This
  2   two-week period shall run beginning at 1:00 p.m. on
  3   the second Saturday in July until 1:00 p.m. two
  4   Saturdays thereafter on the fourth Saturday in July.
  5            The plaintiff shall have no visitation or
  6   custody with the child during the two-week period in
  7   order to provide the defendant with some extended
  8   time with the child without interruption.  The
  9   parties are urged in cooperate in scheduling their
 10   personal work schedules to see to it that they're
 11   able to spend the full vacation time with the child.
 12            Number 5, fall school vacations.  The
 13   defendant shall have visitation with the child
 14   during the fall or Thanksgiving school vacation,
 15   which will alternate on a yearly basis.  These
 16   visitations will run from 10:00 p.m. on the last day
 17   of school for the child to 9:00 p.m. on the day
 18   before school is to begin.
 19            The defendant shall have the visitation for
 20   the year 2006 and the plaintiff shall have the
 21   visitation for the year 2007, and the parties will
 22   alternate each year thereafter.

00592
  1            Number 6, the winter break school
  2   vacations.  The defendant shall have visitation with
  3   the child during the winter or Christmas school
  4   vacation.  This vacation period will be divided into
  5   two parts.
  6            The first part shall begin at 3:00 p.m. on
  7   the child's last day of school and run until
  8   3:00 p.m. -- excuse me.  3:00 p.m. on the first
  9   Saturday after the child's last day of school and
 10   run until 3:00 p.m. on Christmas Day.  The second
 11   part will run from 3:00 p.m. on Christmas Day until
 12   3:00 p.m. on New Year's Day.
 13           The parties will alternate these two time
 14   periods each year thereafter.  The plaintiff will
 15   have visitation with the child for the first time
 16   period for the year 2006 and the defendant shall
 17   have the second time period for that year.  The
 18   parties will then alternate the two time periods
 19   each year thereafter.
 20            Paragraph 7, the child's birthday's.  The
 21   defendant will be allowed to contact the child
 22   telephonically on the child's birthday, and if he's

00593
  1   able, to pick the child up for a nightly visitation
  2   from 6:00 p.m. to 9:00 p.m.  One purpose of this
  3   visitation is obviously to allow the child to
  4   celebrate his birthday with both parents.
  5            Number 9, the telephonic visitation.  The
  6   child may telephone a parent at any time.  The
  7   plaintiff and defendant must be careful not to abuse
  8   the use of the telephone.  The defendant may
  9   telephone the child on the following times:  On
 10   Sunday evenings between the hours of 7:00 and
 11   8:00 p.m. on those Sundays when he obviously does
 12   not have visitation.
 13            The plaintiff will be responsible to make
 14   the child available to receive the telephone calls
 15   at the scheduled times and not to listen in on the
 16   conversations, record the conversations or in any
 17   way interfere with the conversations.
 18            Provided neither parent abuses the
 19   privilege, the plaintiff and defendant may call each
 20   other at home during reasonable hours of the day.
 21   Neither party is to call the other party at their
 22   place of work for any reason except in an emergency

00594
  1   situation.
  2            Number 10, transportation for visitation.
  3   Unless otherwise agreed to by the parties in advance
  4   or otherwise ordered as part of this order, the
  5   plaintiff shall be responsible for dropping the
  6   child off at the home of the defendant to begin the
  7   visitations.  The defendant will then be responsible
  8   to return the child at the end of the visitation
  9   period to the home of the plaintiff.
 10            The exchanges of the child must take place
 11   properly and peacefully.  The child is to be ready
 12   to go at the allotted times.
 13            Unless otherwise agreed to by the parties
 14   in advance of the visitation, if the defendant does
 15   not arrive or if the defendant is not home to pick
 16   the child up within one hour of the allotted time to
 17   be dropped off at the defendant's home, then the
 18   visitation will be automatically terminated and
 19   there will be no make-up visitation for this lost
 20   visit.
 21            Number 11, when visitation cannot be
 22   accomplished.  In an effort to provide for as little

00595
  1   disruption in the plans of the child as possible, in
  2   the event the defendant is unable for any reason to
  3   effect the visitation with the child, then the
  4   defendant should notify the plaintiff as soon as
  5   possible and no later than 48 hours before the
  6   scheduled visitation.
  7            If any scheduled visitation is missed the
  8   visiting party will not be entitled to any
  9   alternative visitation day or make-up day unless the
 10   other parties agree to a make-up time in advance.
 11            12, visitation at other times agreed to by
 12   the parties.  The plaintiff and defendant may agree
 13   to visitation at any other times as additional
 14   visitations to the schedule, provided it is
 15   understood that the plan -- as the primary physical
 16   custodian of the child shall ultimately decide
 17   whether or not any additional visitation will be
 18   added -- allowed.
 19            13, general provision of visitation.
 20   Subsection A, continuing cooperation.  The Court
 21   admonishes the parties that it is important to the
 22   welfare of the child that the parties continue to

00596
  1   cooperate amicably with one another regarding all
  2   the visitations in order to ensure that the
  3   educational, medical, financial and social needs are
  4   met.
  5            The parties are to keep the best interest
  6   of the child in mind at all times.
  7            B, exchange of information.  The Court
  8   admonishes the parties that they must continue to
  9   communicate with one another concerning the
 10   visitation schedule, facilitate a good relationship
 11   between each parent and the child.
 12            The party with primary physical custody, in
 13   this case the mother, shall provide the defendant
 14   with copies of any school report cards and school
 15   newsletters within 72 hours of receiving them.
 16            The party that obtains health insurance, in
 17   this case the plaintiff, for the child must provide
 18   the defendant with a copy of the health-insurance
 19   cards and policy information so that both parties my
 20   utilize the health insurance when necessary.
 21            The party with primary physical custody, in
 22   this case the plaintiff, must provide the other

00597
  1   party, the defendant, with any and all of the
  2   medicines that the child may need for the duration
  3   of any visitation.  No school, hospital or health
  4   records will be denied to either parent.
  5            The parents must provide each other with
  6   their current home address and telephone number at
  7   all times.  In the event that either parent intends
  8   to change their address they must provide the notice
  9   of the new address and telephone number to this
 10   Court and to the other parent 30 days prior to the
 11   move taking place.
 12            This notice shall be sent by mail, mail
 13   postage prepaid to both the Court and the other
 14   party.
 15            C, efforts to limit the effects of
 16   separation and divorce on the child.  The parties
 17   are to keep the peace and not to harass or interfere
 18   in the private life of the other party in any way
 19   whatsoever.
 20            The parties are not to discuss the issues
 21   of custody, child support or the visitation in the
 22   presence of any child.  The parties are not to say

00598
  1   or do anything that will demean the other party in
  2   the eyes of child or in any way diminish the respect
  3   the child has for any parent.
  4            D, other special requirements for
  5   visitation.  Number 1, in the event either party
  6   takes the child outside of the Commonwealth of
  7   Virginia, then they shall notify the other party in
  8   advance of the address and telephone number where
  9   the child will be.
 10            Paragraph 5, child support.
 11   Subparagraph 1, child support payments.  In
 12   consideration of the evidence presented by the
 13   parties, the totalities of the circumstances and the
 14   law of this Commonwealth including but not limited
 15   to Virginia Code section 20-107.2 ad sec, it is the
 16   order of this court as follows.
 17            The Court makes the following findings for
 18   the purpose of calculation of child support.  The
 19   actual child support given the position of the
 20   father would be as follows:  The father's gross
 21   monthly income is $480 per month.  The mother's
 22   gross monthly income is $6,325 per month.  The total

00599
  1   is $6,805 per month.
  2            The percentage therefore is 7 percent and
  3   the mother's obligation is 93 percent.  The
  4   statutory amount for child support is $834.  If you
  5   add to that the health-insurance cost of $75 and the
  6   monthly child-care expenses of $342, you get a total
  7   of $1,251.  His obligation would be 7 percent or
  8   $87.57 per month.
  9            However, given the fact that the father in
 10   this case is clearly voluntarily underemployed, the
 11   Court finds that it's in a position that it must
 12   impute income to the defendant.
 13            The income found by the Court consisting of
 14   limited testimony of the defendant as to his last
 15   income would be $85,000 per year.  That's $7,083 a
 16   month.  Her income would be $6,325 a month.  The
 17   total would be $13,408 a month.
 18            The statutory amount then would be a total
 19   of $1,119 per month.  If you add to that the two
 20   accounts, the insurance and the monthly child-care
 21   expenses you get a total of $1,536 per month.  His
 22   obligation would then be 53 percent which would be

00600
  1   $814 per month.  The Court is therefore going to
  2   order that the defendant pay child support effective
  3   June 1, 2006, at the rate of $814 per month.
  4            Subparagraph 2, child support arrearage.
  5   The court does find that the defendant is in arrears
  6   of the payment of child support in accordance with
  7   the orders of this court.  That effective May 1,
  8   2006, the defendant owes $18,929 per month [sic].
  9            In order to address the arrearage in child
 10   support and to allow the defendant to merge himself
 11   of further contempt, that the court does find him in
 12   contempt for failing to pay that child support.
 13            The Court is going to order that he pay an
 14   additional $50 per month beginning June 1, 2006, so
 15   that his total monthly income or support payment
 16   would be $816 per month.  It is -- if he would like
 17   he may pay $816 at the rate of $408 on the 1st of
 18   each month and $408 on the 15th of each month.
 19            Paragraph 3, termination of child support.
 20   And I'll ask counsel to simply follow the statue if
 21   you will.  The payment of child support ordered
 22   hereunder shall continue until further order of this

00601
  1   Court and shall terminate in accordance with
  2   Virginia Code section 20-124.2 as amended.
  3            That is to say that child support shall
  4   continue for the child who is over the 18 years of
  5   age who is, 1, a full-time high-school student, 2,
  6   not self-supporting and 3, living in the home of the
  7   parent seeking or receiving child support until the
  8   child reaches the age of 19 years or graduates from
  9   school.
 10            The Court has also found that the child is
 11   under certain severe and permanent disability and
 12   would order continued child support.
 13            Number 4, health care and insurance and
 14   uncovered expenses, health-care expenses.  The
 15   plaintiff is hereby ordered to provide the
 16   health-care insurance for the child as such
 17   insurance is defined under Virginia Code
 18   section 63.1-250.
 19            In the event any necessary medical or
 20   dental treatment is not covered by the insurance,
 21   then each party shall be responsible for the payment
 22   of health-care cost in accordance with their

00602
  1   percentages of their gross income as set forth in
  2   paragraph 5 above.  That would be, as I noted
  3   earlier, his obligation would be 53 percent.  Her
  4   obligation would be the balance up to 100 percent.
  5            Paragraph 6, equitable distribution.  In
  6   consideration of the evidence presented by the
  7   parties, the totality of the circumstances in the
  8   law of the Commonwealth, including but not limited
  9   to Virginia Code section 20-107.3 and the factors
 10   found in custody and subsection E, this Court having
 11   made certain findings as to the legal title between
 12   the parties to their property and the ownership and
 13   value of all such property whether real, personal,
 14   tangible or intangible and having determined which
 15   property is separate and which is marital and which
 16   is part separate and part marital and the value of
 17   all relevant property as of the date of this hearing
 18   unless otherwise divided herein, the Court orders
 19   equitable distribution as follows.
 20            What I'm going to do if you want to refer
 21   to Plaintiff's Exhibit Number 2, the Court is going
 22   to track that exhibit for the purpose of this order.

00603
  1   And I'll start on page 1 of 5.
  2            I labeled these as different numbers.  The
  3   number 1 would be the marital home and the escrow of
  4   those assets.
  5            The Court is going to order that the
  6   marital debits of these parties shall be paid as
  7   further directed by this order and that the balance
  8   after payment of marital debits be divided by the
  9   parties equally.  50 percent of the net to the
 10   plaintiff and 50 percent of the net to the
 11   defendant.
 12            Number 2 addresses those proceeds of sale
 13   and the Court has so ordered that distribution.
 14   Number 3 is the furniture and house hold goods.  The
 15   Court agrees, by the way, with the findings here as
 16   for the legal title as these are jointly titled
 17   properties, marital properties that in terms of
 18   evaluation there has been testimony as to the
 19   evaluation of the different property.
 20            There was an order in which the parties --
 21   the Court provided the parties may list the property
 22   for sale for $340,000, and I think they got --

00604
  1   listed it for $399,000 and ultimately settled on the
  2   property for $380,000 on December 12th, 2003.  So we
  3   have the balance of the proceeds of that sale left
  4   over and the Court will order equal division of
  5   those proceeds.
  6            Number 3, the furniture and household
  7   goods.  The Court will find that they have been
  8   divided by the parties and that they are to retain
  9   possession of the goods in their possession without
 10   further division by the Court.  There has been no
 11   evaluation by the parties as to those items of
 12   personal property, but the Court does find that they
 13   are marital property.
 14            Number 4, the 1993 Saturn SL2 purchased
 15   with marital funds.  No evaluation placed on it.
 16   Approximately $1,780 is the only evaluation I have.
 17   I find that to be joint property and marital
 18   property at $1,780.  That is the property and in
 19   possession of the plaintiff -- of the defendant and
 20   will be distributed to the defendant.
 21            Number 5 is the 1998 Saturn SW2.  Was in
 22   the husband's name, was jointly titled, I believe,

00605
  1   at one time.  In terms of ownership it is marital
  2   property, but in any event the car has been
  3   abandoned and there is no evaluation so no
  4   distribution will be made of that asset.
  5            Number 6, the CPC stock.  Very little
  6   testimony as to the actual evaluation of this stock.
  7   It is a privately owned company.  I believe that
  8   stock and those shares are in the possession of the
  9   defendant in this case and the Court would order
 10   that they be distributed to the defendant.
 11            Number 7 --
 12            MS. VARDY:  Excuse me, Your Honor.
 13            THE COURT:  Yes.
 14            MS. VARDY:  They're in the plaintiff's --
 15            THE COURT:  I'm sorry.  Did I say
 16   defendant?
 17            MS. VARDY:  Yes.
 18            THE COURT:  Plaintiff's possession.  Should
 19   be distributed to the plaintiff.
 20            Number 7 and 8, the Dytech stock account
 21   and Ameritrade account.  As I understand, those
 22   accounts are one in the same.  Again, very little

00606
  1   testimony as to the evaluation.
  2            We have a liquidated amount of $7,992.  The
  3   stock were sold by Mr. Smith in September 20, '02,
  4   for $24,252.  The Court will order -- find that to
  5   be the case and find them to be marital funds.
  6   Order that they be distributed to the husband in
  7   this case.
  8            Number 9, the 401(k) plan of the wife.
  9   It's jointly titled as of July 17th, 2002.  No
 10   evaluation is placed on it.  The Court finds that
 11   that fund was not attributed to until after the
 12   separation of the parties and therefore there is no
 13   division to be made.  And that should be retained by
 14   the plaintiff.
 15            Number 10, the 2002 federal tax
 16   overpayment, a tax refund in which Mr. Smith
 17   received $1,095, clearly marital joint property.
 18   The court orders that that be distributed to the
 19   defendant, Mr. Smith.
 20            Number 11, the 2002 Virginia Tax refund
 21   valued at $2,854.  Likewise marital property to be
 22   distributed to Mr. Smith, the defendant in this

00607
  1   case.
  2            Number 12, the 2002 child tax credit tax
  3   refund taken by DCSC and then refunded and Ms. Smith
  4   deposited that.  The Court finds that to be joint
  5   property and marital property.  It will be
  6   retained -- I assume Ms. Smith deposited that and
  7   had possession of that, so that's to be retained by
  8   the plaintiff in this case.
  9            Next page.  Item -- page 4 of 5.  I labeled
 10   item number 1 post-separation mortgage payment and
 11   post-separation mortgage payment, item 2.  The court
 12   has considered that the separation mortgage
 13   payments.
 14            There has been no testimony with regards to
 15   fair market rental value of that property.  Taking
 16   that into consideration I'm going to simply require
 17   after the marital debits are paid that the equity or
 18   the net proceeds left after settlement should
 19   equally be divided by the parties.
 20            Number 3, electricity bill.  This was a
 21   bill, $1,502, paid by Ms. Smith, the plaintiff, and
 22   the Court is going to provide that that bill be paid

00608
  1   by her so that there will be no -- I'm aware of the
  2   amount, but I'll make no specific credit or
  3   distribution other than that.
  4            The Comcast cable bill, number 4, $275,
  5   paid by Ms. Smith, is to be paid by Ms. Smith.
  6   Number 5, the local telephone service, $258, she has
  7   paid and I'll order her to pay that.  That bill be
  8   distributed to her so she's responsible for that and
  9   has already paid it, in fact.
 10            Number 6, the long-distance charges of
 11   $116.  It's a marital debt, but I'm going to order
 12   her to pay that bill.  Number 7, the waste disposal,
 13   $193.  I find that to be her bill without credit.
 14   She is to pay that bill as well.
 15            Number 8, credit card interest of $2,000
 16   and interest paid on cash advances taken by
 17   Ms. Smith to pay the mortgage payment has been
 18   addressed by distribution of the proceeds of the
 19   sale.  There will be no further distribution of that
 20   asset or debt.
 21            Number 9, car insurance for Wesley Smith.
 22   The Court will find that that was a marital

00609
  1   obligation and debt that she paid for him.  The
  2   Court will order no further distribution as to those
  3   funds.
  4            Number 10, First USA Bank One joint.  This
  5   is the one I believe is valued at $6,234, and the
  6   Court is going to order that that debt be paid.  I'm
  7   going to direct the plaintiff to make the payments
  8   of this debt and deduct that, obviously, from the
  9   proceeds of sale when the equity is divided.
 10            Next page 5 of 5, item 11, Dyhal Chemical
 11   CU.  This is $1,900.  It's a marital asset and was
 12   paid by Mr. Smith.  Apparently he has paid that
 13   debt; rather, it's a marital debt.  He has paid that
 14   off.  So the Court would direct that it be
 15   distributed to him as a marital debt.
 16            Number 12, the Wachovia Bank, formerly the
 17   First Union.  The Court finds that to be $4,156.
 18   Likewise make the plaintiff responsible for the
 19   payment of that debt from the proceeds of sale.
 20            The First Union -- number 13, First Union,
 21   Wesley Smith's name.  The testimony of the plaintiff
 22   is $1,030.  It's unknown.  The defendant has -- by

00610
  1   Exhibit D has shown a $9,979.  I'll distribute that
  2   debt to Mr. Smith.  I think that's his obligation.
  3            Number 14, Capital One Mastercard.  That is
  4   shown on Exhibit 4:7 at some $13,000.  The evidence
  5   was that balance due is $1,206.  I'll direct that
  6   that portion be deducted from the proceeds and that
  7   Ms. Smith, the plaintiff, be responsible for the
  8   payment of that.
  9            Number 15, Citibank educational loan.  I
 10   believe that's the $11,328.  The Court is going to
 11   direct that that be paid from the proceeds and
 12   Ms. Smith will be responsible for the payment of
 13   that obligation.
 14            Number 16, separate debts of the wife.
 15   These are separate debts.  The Court does find them,
 16   in fact, to be separate debts.  That's the Honda CRV
 17   that was sold on March 11th.  17 is the 2002 Mazda
 18   626 she now operates.  I find that to be a separate
 19   asset be distributed -- no need to be distribute the
 20   asset.  It's her asset.
 21            Number 18, credit-card debt is also --
 22   approximately $4,500 is her obligation.  Separate

00611
  1   debt of the husband is the Dhyal Credit Union Loan
  2   of $60,000, number 19.  And back on page 2 or
  3   forward on page 2 of 5 there was a description of
  4   property in terms of separate property of Cheri
  5   Smith, the plaintiff in the case.
  6            Number 1, is the property and household
  7   furnishings.  And the Court finds that those -- that
  8   property has been separated.  There's no testimony
  9   whatsoever as to the evaluation of that property by
 10   either party.  And the Court is going to order that
 11   the -- they retain possession of the property they
 12   now have in their possession and that is the
 13   distribution of the furnishings.
 14            Number 2 is that 2002 Mazda which she has
 15   testified to, and as noted earlier that it's the
 16   wife's property and the Court would order that she
 17   retain title to that.
 18            And page 3 of 5 you have the personal
 19   disclosure by Ms. Smith of the separate property of
 20   Mr. Smith, and again, number 1 is the personal
 21   property and household furnishings.  That has been
 22   divided.

00612
  1            It was marital property divided by the
  2   parties.  No evaluation placed upon that by either
  3   party.  The Court again would order the parties
  4   retain possession of personal property in their
  5   possession.
  6            MS. VARDY:  Excuse me, Your Honor.  Your
  7   Honor?
  8            THE COURT:  Okay.
  9            MS. VARDY:  The -- your ruling on the
 10   proceeds of the house, does that -- what about the
 11   $50,000 that has already been released to
 12   Mr. Smith's mother for his obligation?
 13            THE COURT:  I'm simply going to deal with
 14   the net proceeds as they now exist.  I'm not going
 15   to make any ruling as to that $50,000, okay?
 16            MS. VARDY:  Okay.
 17            THE COURT:  I think that was distributed to
 18   pay off the debt of his as I understood it at the
 19   time.  So I'm not going to make any further
 20   distribution on that.
 21            Let me go ahead and finish my order and
 22   then I'll come back and see if you have any

00613
  1   questions of the balance of it.
  2            Number 7 is attorney's fees and court cost.
  3   The Court is going to order that both parties should
  4   be responsible for repaying of their attorney's
  5   fees.  Mr. Smith has submitted a bill that he has
  6   had incur as has the plaintiff in this case.  I
  7   think with the imputed income both parties should be
  8   capable of paying their attorney's fees so I'm not
  9   going to make any additional order.
 10            Now, let's go back.  Ms. Vardy, you have to
 11   prepare the order, and see if you have any questions
 12   on behalf of the plaintiff as to the court order.
 13            MS. VARDY:  Your Honor, I have one question
 14   to start with about the child summer visitation.
 15            THE COURT:  Okay.
 16            MS. VARDY:  You had ordered the --
 17            THE COURT:  Let me say you obviously will
 18   have to get a copy from the court reporter as to the
 19   Court's order.
 20            MS. VARDY:  Yes, Your Honor.
 21            THE COURT:  You can make that the order
 22   will reflect the Court's ruling.

00614
  1            MS. VARDY:  Liam is going to be attending
  2   summer school.  And that you ordered it in July.  He
  3   will be in summer school for the defendant's time.
  4   He will be in summer school at that time.
  5            THE COURT:  Well, I suppose every child is
  6   subject to summer school one time or another, but
  7   the father has a right to visitation including
  8   during the summer.  So unless the parties can work
  9   some other agreement out in terms of where you can
 10   find the two weeks during the summer, I'll let
 11   you -- allow you to be free to do that.
 12            And I'll say for the parties that what this
 13   Court has ordered, once it's typed up I think it's
 14   easier to see.  Quite frankly when Ms. Vardy puts it
 15   in the order that it has to be suitable for the
 16   Court, which requires all the notice and provision
 17   of the defendant, as well as you know.
 18            Once that's done it's usually easier for
 19   the parties to see exactly what the court ruled
 20   today, and if the parties can sit down and agree to
 21   any modifications or changes to that court order.
 22            Understand it's not the purpose of this

00615
  1   Court to interfere with your ability to come to an
  2   agreement.  We encourage that.  So if you can do
  3   that then you are free to do that.  And I feel that
  4   way about the summer visitation.  If you can't come
  5   to an agreement then I think this is the order.  And
  6   the order should remain that way.
  7            I would say to both parties, there has been
  8   a history in this case of court violations.  And it
  9   has been frustrating, I think, for the parties.  And
 10   I think it's also been very frustrating for the
 11   Court.
 12            I made notice, we went through it.  On
 13   October 2, 2003, this Court entered an order
 14   directing the defendant to pay child support.  He
 15   stopped paying the child support on July 4th,
 16   clearly violated that order.
 17             In December of '04 there was a violation
 18   with regards to the visit over Christmas.  And in
 19   January 3, '05, the Court entered that temporary
 20   suspension-of-visitation order at a hearing on
 21   January 18th in which Judge Millette said there are
 22   two things the defendant has to do in order to enjoy

00616
  1   the benefits of and his rights of visitation.
  2            And that is number 1, he has to submit a
  3   report as to -- from the child psychologist.  That
  4   was not done.  The defendant remains in violation of
  5   that order.
  6            Number 2, he's supposed to present a plan
  7   as to acceptable visitation.  As counsel pointed out
  8   in her cross-examination, that was never done.  So
  9   there's a history here of the parties' inability to
 10   comply with the orders of this Court.
 11            And quite frankly, that can't go on,
 12   especially when you have such a distant visitation
 13   like this.  It's not going to be easy to effect
 14   these visitations, but the parties have to corporate
 15   and work hard to make sure that you comply with this
 16   court order.
 17            If you don't, what's going to happen is
 18   what's already in this case.  What can happen is
 19   suspension of custody, suspension of visitations.
 20   There are all kinds of sanctions.  I don't have to
 21   tell Mr. Smith, I'm sure he's aware of the fact,
 22   failure to pay child support can result in

00617
  1   incarceration in Virginia.  It's not something the
  2   Court can take lightly.
  3            The inability to support the child while,
  4   as he pointed out, is not lengthened to the issue of
  5   visitation and custody.  It is an action, step that
  6   this Court deems very important.  I want this child
  7   supported.
  8            The best interest of this child is my
  9   primary concern if it is not the concern of the
 10   parties.  And in order to support -- I mean, I find
 11   it real hard to believe that a witness can testify
 12   that he loves a child on one hand and has not
 13   supported him in over three years.  Not pay one cent
 14   in over three years for his financial support.
 15   That's not consistent.
 16            And I think it's important that the parties
 17   understand that this Court will not condone further
 18   violations of this Court's order.  Now, there are
 19   remedies this Court has available to it and it won't
 20   hesitate to take advantage of those if the parties
 21   violate this order.
 22            I would ask the parties, as I always have,

00618
  1   if you feel there's a violation, bring it to the
  2   attention of the Court and we will address that
  3   violation.  But don't hesitate.  Don't wait because
  4   I think that makes matters worse and I think Liam's
  5   best interest needs to be addressed and addressed
  6   properly.  Okay?  I hope I've made myself clear to
  7   both parties.
  8            MS. VARDY:  There are two -- okay.  Two
  9   issues you did not address.  That was the Chase
 10   Exprise, $11,000 account, and the --
 11            THE COURT:  I thought I did.  I thought I
 12   ordered that to be deducted.  $11,328, is that not
 13   the right one?
 14            MS. VARDY:  I thought you had ordered the
 15   other Chase.  The Wachovia to -- that became the
 16   Chase, which was --
 17            THE COURT:  The Wachovia is $4,156.
 18            MS. VARDY:  Right.
 19            THE COURT:  Right.  And the Chase is
 20   $11,328.  Am I wrong about that?  I thought that was
 21   what you showed me.
 22            MS. VARDY:  Okay.

00619
  1            THE COURT:  I think what is confusing is I
  2   may have addressed that as the Citibank Educational
  3   loan.  Is that what's confusing?
  4            MS. VARDY:  Possibly, yes.  Because that
  5   was paid -- yes.  That's what I have down here.
  6            THE COURT:  And I did not make a finding on
  7   that and should.  The testimony was -- and I'll be
  8   honest with you.  I can't understand your figures
  9   because it has got the comment in the wrong
 10   location.  If you look at page 5 --
 11            MS. VARDY:  Oh, I'm sorry, Your Honor.
 12            THE COURT:  I think that should be $12,421.
 13            MS. VARDY:  It is, Your Honor.  Yes.
 14            THE COURT:  Okay.  And the balance is
 15   $9,509.  So I think the $9,509 needs to be deducted
 16   as well.
 17            MS. VARDY:  From the proceeds?
 18            THE COURT:  Yes.
 19            MS. VARDY:  And you're saying the
 20   $11,000 --
 21            THE COURT:  Understand I'm making her
 22   responsible for it so it's not like I'm giving her

00620
  1   $9,000.  She owes that money in any event.  Half of
  2   it, right?  And my view is he owes the other half,
  3   but I'm giving the money to her so she pays the
  4   bill.  She's obligated to that.
  5            MS. VARDY:  Yes.  The same thing with
  6   the -- you didn't -- the Chase Exprise.  Is that to
  7   be paid from the net proceeds as well?
  8            THE COURT:  Yes.  It is.  I did not -- what
  9   I -- I added that $11,328 and forgot to add the
 10   $9,509 and that should be added.
 11            MS. VARDY:  So that in effect we are going
 12   with Mr. Smith's figures for the marital debt to be
 13   paid?
 14            THE COURT:  I haven't done the math and
 15   totaled up those accounts.  But I think what we
 16   omitted, but we may have.  I don't know.  I don't --
 17   I haven't done the math on that.  If you add those
 18   up it may would be the $30,000 he says needs to be
 19   deducted.
 20            MS. VARDY:  Your Honor, I am going to ask
 21   you again about the $50,000.  That was used to pay
 22   Mr. Smith's lawyers and his business and that came

00621
  1   from the proceeds of --
  2            THE COURT:  My understanding was that was
  3   to pay a debt that was owed to his mother.
  4            MS. VARDY:  He borrowed the money from his
  5   mother to pay his attorneys, which is why we went in
  6   and said we were willing to pay his mother back.
  7            THE COURT:  Okay.  I misunderstood that,
  8   then.
  9            MR. SMITH:  And she hasn't provided --
 10            THE COURT:  I thought that was a debt in
 11   part -- in essence a loan that had been made to the
 12   mother to the parties at the time they were married,
 13   so it was a joint debt.
 14            MS. VARDY:  No.  This was after.  Mr. Smith
 15   used that money to hire his attorneys and --
 16            THE COURT:  Okay.  So what's your proposal
 17   on the $50,000?
 18            MS. VARDY:  Your Honor, if -- well, I would
 19   propose that Ms. Smith be credited with $50,000 from
 20   the $130,000 before we start doing the distribution
 21   to pay the bills, and then after that --
 22            THE COURT:  Okay.  Let me hear from

00622
  1   Mr. Smith on that.  You want to be heard on that?
  2            MR. SMITH:  Well, actually, it is marital
  3   debt because that was just a transfer of debt from
  4   credit cards to a cheaper loan I could get through
  5   my mother, and if she hadn't done that I would have
  6   been unable to sign the --
  7            THE COURT:  How much was -- the loan to
  8   your mother, how much was attorney's fees?  Your
  9   attorney's fees?
 10            MR. SMITH:  No.  What happened was I had a
 11   lot more debts on the credit cards.  My mother
 12   signed --
 13            THE COURT:  Which credit card?  Was it a
 14   joint card or your separate card?  And were those
 15   debts marital debts, I guess is the question.
 16            MR. SMITH:  They were marital debts
 17   incurred before the end of 2002.  And what happened,
 18   they were very high interest rates and I knew we
 19   were going to sell the house and I had assumed I
 20   would at that point get funds from the house, so
 21   I --
 22            THE COURT:  So how much did your borrow

00623
  1   from her all together?
  2            MR. SMITH:  $65,000.
  3            THE COURT:  Okay.
  4            MR. SMITH:  And it was a much lower
  5   interest rate so I just figured it would be a
  6   short-term loan, save some money.
  7            THE COURT:  Did you get a note or anything
  8   from her?
  9            MR. SMITH:  Well, I actually got it
 10   directly through the credit union.  There's a lot of
 11   paperwork on it.  And it was just her money that
 12   backed the loan.
 13            THE COURT:  Okay.
 14            MR. SMITH:  And so as far as I could tell
 15   it should be marital debt because I would just -- it
 16   wasn't like I spent the money.  I was just
 17   transferring it.
 18            THE COURT:  All right.  Ms. Vardy, you want
 19   to respond?
 20            MS. VARDY:  Yes, Your Honor.  Among other
 21   things, Your Honor, Mr. Smith said many times in
 22   court that he had to spend this money to -- for

00624
  1   attorneys.  Also if you look at what he has under
  2   the $11,000 and $9,000 entry, he states there he
  3   used it for attorney's fees to fight child-custody
  4   case and protective order.
  5            In addition, we've listed here what were
  6   the marital debts and he did not list anything
  7   coming up to $65,000.  Did not submit anything that
  8   represented that.  He has represented numerous times
  9   that his lawyers fees had gone to over $70,000, and
 10   I do know his attorney's have been paid.  And if I
 11   need to get a -- an affidavit from them, I can.
 12            THE COURT:  Okay.  Any response to that,
 13   Mr. Smith?
 14            MR. SMITH:  I did have one.  What was it
 15   you just --
 16            THE COURT:  She attributes it to attorney's
 17   fees as opposed to the payment to your credit-card
 18   debt.
 19            MR. SMITH:  Well --
 20            THE COURT:  Marital debts as opposed to
 21   attorney's fees.
 22            MR. SMITH:  Well, some of it was living

00625
  1   expenses.  And also we would not have been able to
  2   sell the house without my mother having provided
  3   that loan.  I would not have signed the papers to
  4   sell it even with the threat of contempt because
  5   some of that money was used to get an apartment.  I
  6   did not have good credit.  Without that the house
  7   would not have been sold at that point.
  8            THE COURT:  Okay.  Well, I -- it's hard to
  9   say.  I'm getting obviously conflicting testimony or
 10   argument here.  I think the only thing I can do at
 11   this point is order then that $25,000 be deducted
 12   from net and I'll allow the parties to split that
 13   obligation.  And -- and then you can come up with
 14   the total net that's due.
 15            MR. SMITH:  Judge, I would have one
 16   request.  On the notification of travel.
 17            THE COURT:  Yes.
 18            MR. SMITH:  I live very close to the West
 19   Virginia state line and Liam likes to go camping.
 20   So I would appreciate it if we could have some
 21   distance from my residence for that.
 22            THE COURT:  You want to be heard on that,

00626
  1   Ms. Vardy?
  2            MS. VARDY:  No, Your Honor.  It's not a
  3   problem for my client.
  4            THE COURT:  Okay.  150 miles, 200 miles?
  5            MR. SMITH:  That's fine.
  6            THE COURT:  200 miles from the residence.
  7   So in other words, outside the Commonwealth of
  8   Virginia or West Virginia, in essence, all right?
  9            MR. SMITH:  What if it's down there close?
 10   A mile would be nice.
 11            THE COURT:  All right.  That way you can
 12   take him anywhere in West Virginia.
 13            MR. SMITH:  Yes.  Because we have before
 14   just kept the camping gear in the car and --
 15            THE COURT:  Okay.
 16            MR. SMITH:  -- if he finds a place, we
 17   stop.
 18            THE COURT:  I need to remember that I did
 19   get a statement from the guardian ad litem as to his
 20   accounting fees.  He sent in an amended one last
 21   night and that should be deducted obviously from the
 22   expenses as well.

00627
  1            MS. VARDY:  I do not have the --
  2            THE COURT:  You don't have the new one?
  3            MS. VARDY:  I can get it from him.  He
  4   called me this morning to show me that he had
  5   amended it.
  6            THE COURT:  That should be deducted as well
  7   before you get the net.
  8            Mr. Smith, did you have any other questions
  9   dealing with the Court's order?  As I said,
 10   sometimes it's easier when you see it all typed up,
 11   it makes it easier.
 12            MR. SMITH:  No, sir.  I will wait and --
 13            THE COURT:  Okay.
 14            MR. SMITH:  You know me.  I'll be filing
 15   lengthy objections, but I do appreciate that I'll be
 16   able to spend time with my son.
 17            THE COURT:  Okay.  We'll go ahead and get
 18   that order entered and I think we set it for
 19   June 9th.  I would ask counsel to make a copy of
 20   that and send it to the Court so we can review it
 21   before it's entered.
 22            MS. VARDY:  Your Honor, I do have one more

00628
  1   question.  I'm sorry.  The amount of the arrearage.
  2   You said that Mr. Smith could pay an additional $50
  3   a month, which would make it $864?
  4            THE COURT:  Correct.  Divide that by 2 so
  5   you can pay on the 1st and 15th if he wants to,
  6   okay?
  7            MS. VARDY:  Yes, Your Honor.
  8            THE COURT:  All right?
  9            MS. VARDY:  I'm sorry, $864.  It would have
 10   been $50 more.
 11            THE COURT:  All right.  Thank you.
 12            (Whereupon, the proceedings at 3:40 p.m.
 13   were concluded.)
 14   
 15   
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00629
  1                 CERTIFICATE OF REPORTER
  2           I, Andrea L. Blakley, do hereby certify that
  3   the foregoing excerpt of the proceedings were taken
  4   by me in stenotype and thereafter reduced to
  5   typewriting under my supervision; that I am neither
  6   counsel for, related to, nor employed by any of the
  7   parties to the action in which these proceedings
  8   were taken; and further, that I am not a relative or
  9   employee of any attorney or counsel employed by the
 10   parties hereto, nor financially or otherwise
 11   interested in the outcome of the action.
 12   
 13   
 14                  ________________________________
 15                       Andrea L. Blakley
 16                       Notary Public
 17   
 18   
 19   
 20   
 21   
 22