NOT SO NEUTRAL AFTER ALL: THE COLLEEN KERWICK STORY, PART VIII

I am not particularly a big fan of judicial marshals because they have a habit of coming to my door and giving me bad news.  My worst experience of that was when a marshal gave my eight year old daughter 3 single dollar bills as a bribe.  He gave money to her so she would fetch me from the kitchen where I was washing the dishes so he could serve me legal papers.  When you start taking actions that affect my children, that's when I draw the line.

The statutes which cover the actions of process servers such as marshals are as follows:

Sec. 52-50. Persons to whom process shall be directed. (a) All process shall be directed to a state marshal, a constable or other proper officer authorized by statute, or, subject to the provisions of subsection (b) of this section, to an indifferent person. A direction on the process "to any proper officer" shall be sufficient to direct the process to a state marshal, constable or other proper officer.

As you can see, the point is that a process server is supposed to be a neutral person--he is supposed to be dropping off papers, not advocating from one person or another. "indifferent person"*.  Just for clarification, this is what a process server does.  A process server delivers legal documents to the target person who is supposed to receive them and then leaves.  That is all he or she  does--nothing more and nothing less.  A judicial state marshal is not supposed to be snooping around or investigating or acting like an ad hoc detective.

He or she is not supposed to be showing up in Court with three page, single spaced, ten point font, long winded affidavits that have not been presented as evidence in court and have not be subjected to cross examination.  They are not supposed to write up affidavits which can then be used against litigants as a means of taking custody away from them.  Further, you are not supposed to accompany the opposing attorney in the case to the police station and attempt to get the target person into more trouble, which is what Attorney Marshal Kaz admits he did in an affidavit he wrote for Budlong & Barrett in the Savino v. Savino case.  When you start doing that, you are no longer an "indifferent person,"  and you are bottom line in violation of the law [see link at the bottom of the blog for additional clarification of the state marshal's role*]

At the very least, if you do so, you are overstepping your role.  It would sort of be similar to having your child's teacher dropping by unannounced at your house for dinner, just to talk to you more about your child's needs over a nice roast!  Then going back to the principal and telling him what the conversation was like, what the condition of your home was, etc.

So what happened in the Savino v. Savino case with Marshal Bruce Kaz?  Let's look at what his affidavit says!

On December 20, 2015, Marshal Bruce Kaz, a state marshall of Hartford County received motions from Kenneth Savino, the plaintiff in Savino v. Savino, which I have been discussing in this series in regard to the defendant, Colleen Savino.  He received the first motion at 10:15a.m. which was entitled "Plaintiff's Ex Parte Motion Regarding the Minor Child's Scheduled Vacation to Arizona With the Plaintiff Father".

I find this an interesting title because it is a "speaking title".  In other words, it is a title that attempts to provide testimony in addition to asking the Court to take action.  Speaking titles and motions ordinarily come from Pro Se parties who don't know any better.  In this situation, it comes from one of the most experienced attorneys in the business, Budlong & Barrett.

Ordinarily, I'd expect such a motion to be called "Motion For Order" or something of that nature.  Who knows why Budlong and Barrett chose to do it this way--perhaps they wished to convey a sense of a poor Dad who is so upset the words just pour out of him.  One thing you can be sure of, if you or I had written up a motion with a title like this, we would have been reprimanded or simply ignored.  But attorneys who do this, well, you know they get away with everything.

Marshal Kaz took the motion "Plaintiff's Ex Parte...Arizona, blah, blah, blah" and met Kenneth Savino at a Radiologist's office in Bloomfield at around 11:00a.m. where Mr. Savino stated he imminently expected Colleen to appear, even though there was, apparently, no specific appointment.  Further, there was no indication that Colleen knew anything about this expectation that she was supposed to be there.  While Marshal Bruce Kaz stated that the pediatrician had ordered the parents to go to this particular radiologist's office at a particular time, I have seen no evidence to prove that this is true.  Again, that is the problem with an affidavit where the opposing attorney does not have the opportunity to scrutinize it or pose questions regarding its content to see how accurate it is.

Further, the affidavit stated that on that day Kenneth Savino had a 1:00p.m. plane to catch going to Arizona.  Was Colleen Kerwick informed of this?  The affidavit doesn't say.  Because clearly, if you go by the concept that you should arrive two hours before your flight, 11:00am is getting rather late.  You'd think that if Kenneth Savino really anticipated flying to Arizona that day and had a ticket in hand, he would have scheduled these appointments for earlier in the day.  The fact that he did not calls into question his credibility.

According to Marshal Bruce Kaz, at around noon, Kenneth Savino received a text message from Colleen Savino indicating that she was getting lunch for the child at a fast food joint.  I would suspect this is a rather mundane activity to be involved in if you are planning to flee the country.  Also at noon, Marshal Bruce Kaz asked Kenneth Savino to send a text to Colleen explaining that the marshal wished to see her right away.  Marshal Kaz does not explain why he didn't send a text using his own phone.  He also states that he cannot be sure if Kenneth Savino sent the text or not, only that he asked him to.  Talking about deliberately setting yourself up for failure.  But again, we are only getting one side of the story because this is an unchallenged affidavit written by a Marshal who appears to have spent almost the entire day supporting one party in the litigation, which considerably calls into question his right to be thought of as "an indifferent party."

There is another factor that calls into question Marshal Kaz' position as an indifferent party.  Specifically, in his afafidavit Marshal Bruce Kaz states that he has "been involved in the exchange of the minor child for parenting time for quite a while."  I am surprised to see a judicial marshal playing such a pivotal role in the custody and access matters related to a particular divorce case.  As I have said, a judicial marshal's job is to deliver court papers as an indifferent party, not to become some sort of co-parent manager supervising the exchange of the child from one parent to the other.  This kind of situation inevitably leads to conflicts of interest and confusion related to boundaries that could be very destructive for the parties involved.

Still, whatever else we can agree or disagree on, it is clear there was no reason to think Colleen Kerwick was going to flee.  For example, according to his affidavit, at around 1:00pm while driving in Avon Marshal Kaz caught a glimpse of Colleen Savino, but wasn't able to catch up to her, "I saw a white BMW wagon that matched the defendant's vehicle with the a young female with blond hair pass me in the opposite direction."  So, at least around 1:00p.m. Colleen Savino had not fled the country!

Further, even if Marshal Kaz wasn't able to catch up with Colleen Kerwick at 1:00p.m., in his affidavit, he did make the observation that at 3:40p.m. that day that she was at home stating, "I stopped at the defendant's residence at approximately 3:40p.m. and noticed the defendant's vehicle was parked in the parking lot."  So why didn't Marshal Bruce Kaz drop off the "Plaintiff's Ex Parte Motion" regarding Arizona ordering Colleen to give the child to her ex husband right then and there? Is it because Marshal Kaz was colluding with Kenneth Savino in order to set up Colleen Kerwick for a custody switching scheme?

If he had delivered the first court order, since Colleen has always stated she was ready and prepared to hand over the child when required by law, perhaps the whole fake Amber Alert crisis could have been averted.  Instead, Marshal Kaz disregarded his duty and didn't bother to deliver the order to Colleen Kerwick at that time even though he was fully aware that she was at home and able to receive it!  How ridiculous is that?  Honestly, how can you blame Colleen Kerwick for not obeying a court order if she never even got it?

Instead, Marshal Kaz met with Avon police, Kenneth Savino and the attorney from Budlong & Barrett at the Avon Police Department.  By then, Budlong and Barrett had submitted a motion requesting that the Court deny Colleen Kerwick any further access to the child and asking that the Court grant temporary sole custody to the father.  This motion was entitled "Plaintiff's Emergency Motion to Suspend Defendant Mother's Access to Minor Child and to Award Temporary Sole Custody to Plaintiff father".  Again, this was a speaking title which I believe was intended to bully and intimidate.  Interestingly enough, in his affidavit, Marshal Bruce Kaz deliberately capitalizes the titles of these motions, which in the modern day of the internet is understood to be a form of written shouting.  

Upon review of the Motion for Temporary Sole Custody, yadda, yadda, yadda side by side with Marshal Kaz' affidavit I find a major discrepancy between these documents.  The Motion, which was date/time stamped as December 20, 2013 at 3:55p.m., fifteen minutes after Marshal Kaz noted that Colleen's car was in her driveway, states under Item #12 that "The plaintiff father is in the process of speaking to the police about obtaining an Amber Alert."  But Marshal Kaz' affidavit states that it was only after the Avon police received the second court order granting Kenneth Savino temporary sole custody that the Avon police officer "began to gather information in case an Amber Alert was needed."  From Marshal Kaz' testimony, it appears that Kenneth Savino's sworn statement in his motion to the Court re custody that he was filing an Amber alert actually wasn't correct.

Eventually, in his Affidavit, Marshal Kaz states that he, two police officers, and Kenneth Savino went over to Colleen Kerwick's residence in order to pick up the child.  He implies that they were forced to make "several attempts" before Colleen would open the door.  But when you look at his timeframe this description hardly seems credible.  The  team arrived at 5:45p.m. and Colleen Kerwick opened the door to her apartment at 5:50p.m.; that is a modest five minutes--not much time to argue about opening a door.  That's enough time to run upstairs and put a sweater on before you open a door, or just enough time to finish peeing, clean yourself up and open a door.  But I wouldn't exactly call this a stand off!

Subsequently, the child was handed over to his father essentially without incident.  Then, on the way out the door at 6:05p.m., Marshal Bruce Kaz finally put the two motions, including court orders and associated documents into Colleen Kerwick's hands.

After reviewing Marshal Kaz' affidavit, it would appear that Marshal Kaz pretty much spent all day with Kenneth Savino working on this case.  When you consider that a marshal can make up to 40-70 dollars per delivery of papers, clearly for a single day's work he made a meager salary on December 20, 2013, unless, of course, he could anticipate receiving other kinds of compensation for being so supportive and available to the firm of Budlong and Barrett on that day.  Oh, yes, I see!  It looks as though Marshal Kaz earned a whopping $457.23 that day, much of it for his time which he charged at $50.00 per hour.  Does anyone know if Kaz was statutorily allowed to do that?  

Apparently, tattling on the people he serves is not unusual for Marshal Kaz.  He has also provided witness testimony in other cases against litigants to whom he delivered papers under very similar circumstances, also where a custody issue was on the balance.  For example, Marina Golli and Hector Morera come to mind.

This leaves me with two questions:  1. How can a judicial marshal who is required to act as an indifferent person proceed to act in a manner that clearly favors one party over another; 2.  How is it that the Court allows the attorney firm of Budlong and Barrett to simply disregard standard legal protocol?  Why is this firm so extra special?

During the testimony at the legislature in 2014, many parents talked about how the opposing party in their case got away with obstructing their access and visitation with their children.  Even after repeated motions and hearings in court judges were reluctant to enforce court orders regarding parents' access to their children, and there were no consequences for a failure to obey court ordered parenting schedules.  

In particular, Gerry Mastrangelo spoke eloquently about how his ex wife obstructed his access to his three children.  

How is it that so many parents could go months and months without access to their court ordered parenting time with their children.  However, in this case, all Budlong & Barrett had to do was trump up a single ex parte false charge of denial of access on one day, and without even a court hearing Colleen Kerwick was immediately denied access to her child?  

I think we would all love to know how that is done!  Is it possible that some kinds of wealthy litigants and their special attorney firms are more equal than the rest?

*http://www.cga.ct.gov/2014/fc/2014HB-05554-R000755-FC.htm