Electronically Filed - St Louis County - December 03, 2021 - 09:53 PM

IN THE CIRCUIT COURT OF ST. LOUIS COUNTY

STATE OF MISSOURI
FAMILY DIVISION

In re the Marriage of: )

)
CAROLINE VAN DEN BERGH, )
(aka CAROLINE LESS) )
)
Petitioner, )
) Cause No. 15SL-DR05021-01
)
v. )
) Division No. 13
MELCHIOR VAN DEN BERGH, )
)
Respondent. )

PETITIONER’S MOTION TO DISMISS AND STRIKE REPONDENT’S

PETITION FOR TRO AND PERMANENT INJUNCTION AND RESPONDENT’S
FORTH MOTION FOR CONTEMPT; MOTION FOR ORDER TO INCREASE
BOND; MOTION TO DISMISS CONTEMPT FOR IMPROPER AND/OR
INSUFFICIENT SERVICE; MOTION IN LIMINE AND FOR OTHER RELIEF

COMES NOW, Petitioner, Caroline Less (“Mom”), by and through her

attorney, Natalia D. McKinstry of Natalia McKinstry LLC, and for her Motion to

Dismiss and Strike Respondent’s (“Dad’s”) “Application for TRO, Peliminary (sic)

Injunction, Permanent Injunction and Emergency Orders” filed on November 24, 2020

(“Petition for TRO”), and Respondent’s Fourth Amended Motion for Contempt filed

on May 28, 2020 (“Fourth Contempt Motion”), for Order to Increase Bond, for Motion

to Dismiss for Improper and/or Insufficient Service; for Motion in Limine and other

relief, respectfully states to the Court as follows:

INTRODUCTION

1. Petitioner incorporates the judicial file in this cause as if fully set herein and

all her prior motions and suggestions in opposition to Dad’s pleadings.

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2. On December 13, 2018, the Court entered the Modification Judgment and

awarded to Dad the sole legal custody of the parties’ minor child, Saskia (10).

3. Dad since filed several motions for contempt, most recently Fourth Motion

for Contempt filed on May 28, 2020, against Mom, pro se at the time.

4. On November 24, 2020, Dad filed his Affidavit and Petition for TRO,

granted in part by Judge Bruce F. Hilton on November 25, 2020.

5. In his Petition for TRO, Dad prayed, inter alia, for “order that Caroline be

prevented from filing complaints against Therapist of Respondent’s

choosing” and “for an order temporarily restraining and enjoining Petitioner

from exercising visitation except under supervision of a third party.” The

former was granted and the latter was crossed out by Judge Bruce F. Hilton.

6. On December 4, 2020, the TRO was extended for additional 10 days for new

GAL to prepare for a hearing continued to December 14, 2020.

7. At the December 14, 2020, hearing, Judge Bruce F. Hilton reported that he

engaged in ex-parte communications which led him to believe that Mom

sued Carol Love, a family therapist appointed by Order of January 7, 2019.

See Exhibit 2 to Mom’s Motion for Recusal, for Change of Judge and for

Review by Presiding Judge, Partial Transcript of Petitioner’s Testimony on

December 14, 2020, incorporated herein. (p. 48, ln. 6-25, p. 49, ln. 1-15);

8. On January 5, 2021, Mom filed Motion for Recusal, for Change of Judge,

for Review by Presiding Judge and other Relief (“Motion for Review”).

9. On January 12, 2021, Judge Bruce F. Hilton recused himself, citing Missouri

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Supreme Court Rule 2-2.9(B) and Missouri Supreme Court Rule 2-2.11.

10. Per Administrative Order No. 21-34, as of January 1, 2022, Judge Bruce F.

Hilton will handle probation revocation matters currently heard by Div. 19.

I. TRO ISSUED ON NOVEMBER 25, 2020, AND ALL

EXTENSIONS THEREOF ARE BARRED BY ILLEGALITY

11. It is undisputed that Mom did not sue Carol Love. Either someone provided

this Court with false information, or Judge Bruce F. Hilton formed a belief

that Mom sued therapist Carol Love based on his ex-parte communications.

12. In either case, the TRO granted in part on November 25, 2020, was based

on Judge Hilton’s erroneous belief that Mom sued therapist Carol Love.

13. Dad alleged that unnamed therapists would not provide therapy to the child

who may suffer “imminent harm,” a threshold for TRO. At the August 9,

2021, hearing, Dad could not name one therapist who refused therapy.

14. Dad has sole legal custody and is responsible to ensure compliance with

GAL Exhibit A2 incorporated into the Modification Judgment of December

13, 2018, and Consent Order regarding therapy of January 7, 2019.

15. Petition for TRO is void of allegations of specific Mom’s action(s) that

would cause an immanent harm that would warrant an injunction.

16. As a matter of law, Dad has multiple remedies in law that bar an injunction.

17. Mom requested a declaratory judgment of the parties’ rights and obligations.

18. Dad who has sole legal custody failed to ensure therapy for the child for

many months after therapist Jennie Wilson quit in January 2020.

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19. Dad who has 50/50 physical custody failed to take the child to therapy for

months.

20. If not for Judge Hilton’s erroneous belief that Mom sued a therapist, there is

no allegation of any immediate action from which Mom must be enjoined.

21. A TRO would be never granted but for the fact that the Judge was led to

believe that there is a pending complaint by Mom that needs to be enjoined.

22. Ex-parte communications with Judges are unlawful. Rule 2-2.9(B), 2-2.11.

23. Therefore, TRO granted in part on November 25, 2020, is ab initio barred

by the affirmative defense of illegality.

24. No record was filed of personal service of said TRO upon Petitioner.

25. Petition for TRO should be dismissed since the facts as alleged therein

failed to state a claim for temporary injunction upon which a TRO can be

granted (if not for Judge’s erroneous belief that Mom sued Carol Love).

26. It was a misapplication of the law for Dad who has sole legal custody to seek

TRO based on his own inability to ensure that the child is in therapy. The

fact that he eventually set therapy proves that any alleged imminent harm, if

any, was due to Dad’s own actions or inactions.

27. Allegations of a medical neglect in connection with appendicitis surgery in

mid-November 2020, cannot form a claim upon which an injunction of any

kind can be granted. The child had successful appendicitis surgery thirteen

months ago from which she fully recovered before the December 14, 2020,

hearing. No imminent danger can be successfully asserted.

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28. Dad, who has sole legal custody and was accessing the child’s medical

records in portal ten times more than Mom, procrastinated and was still

confusing matters by inserting a twisted ovary diagnosis when Mom was on

the phone with Dr. Ross discussing hospital where to take Saskia.

29. Dad exploited this storyline in his Petition for TRO inserting it into the stale

“therapy” theme, based on which his identical Petition for TRO was

previously denied on August 31, 2020.

30. In his filings, Dad pursued an ulterior motive, covering for his own failures

as a parent with sole legal custody, seeking unlawful orders that would

violate Mom’s substantive and procedural rights, to financially abuse Mom

who lost her employment due to COVID impact on her industry.

31. Grant of TRO and any extensions thereof are barred by illegality because no

irreparable injury that a TRO can prevent can be construed based on Dad’s

pleadings, if taken as true; because the three-step process set forth in Rule

92 and RSMo. Chapter 526 has not been followed, including in that this

TRO was issued without a notice and was not properly extended since.

II. PERMANENT INJUNCTION CANNOT BE GRANTED

BECAUSE DAD FAILED TO FILE A MOTION TO MODIFY

32. Furthermore, Dad’s request for permanent injunction should be dismissed

because Petition for TRO seeks permanent changes in custody and/or

parenting plan without a modification filed concurrently with in.

33. Modification Judgment of December 13, 2018, incorporates a parenting plan

and Therapy Orders (GAL Exhibit A2 and January 7, 2019 Order).

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34. The consensus in St. Louis County is that with the Parenting Plan in place,

the Court cannot alter it without a modification filed concurrent therewith.

35. Yet, as of one week before trial Dad did not file a motion to modify.

36. Trial in this case was set on August 12, 2021, four months in advance.

37. Pursuant to RSMo. Sec.452.410. (“Custody, decree, modification of,

when.”) “1. Except as provided in subsection 2 of this section, the court

shall not modify a prior custody decree unless it has jurisdiction under the

provisions of section 452.745 and it finds, upon the basis of facts that have

arisen since the prior decree or that were unknown to the court at the time of

the prior decree, that a change has occurred in the circumstances of the child

or his custodian and that the modification is necessary to serve the best

interests of the child. Notwithstanding any other provision of this section or

sections 452.375 and 452.400 to the contrary, any custody order entered by

any court in this state or any other state may, subject to jurisdictional

requirements, be modified to allow for joint custody or visitation only in

accordance with section 452.375, 452.400, 452.402, or 452.403.”

38. No allegations in Dad’s pleadings demonstrate a significant change of

circumstances since the original judgment entry required for modification.

39. Therefore, Dad’s Petition for TRO should be also dismissed for failure to

state claim upon which relief can be granted since no modification was filed.

III. DAD’S FOURTH MOTION FOR CONTEMPT WAS NOT

PROPERLY SERVED; DAD’S PLEADINGS SHOULD BE
STRICKEN BECAUSE HE FAILED TO COMPLY WITH
ORDER TO PRODUCE DISCOVERY AND SERVED
BLANKET OBJECTIONS AGAIN 10 DAYS BEFORE TRIAL
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40. With regard to Dad’s Fourth Motion for Contempt filed on May 28, 2020,

as a preliminary matter, there was no request for appointment of a special

process server. The purported “affidavit” signed by someone whose name

is illegible should be stricken and service deemed insufficient and improper.

41. Mom by counsel previously filed Motion to Dismiss and Strike Dad’s Fourth

Motion for Contempt because Dad failed or refused to answer discovery

concerning his motions for contempt, in defiance and in violation of the

Court Order directing him to do so by February 13, 2020.

42. Mom’s counsel inquired about discovery responses five times; Dad

provided untimely blanket objections claiming attorney-client privilege

and work-product privilege and provided no responsive documents or

things, no answers, and no privilege logs of any kind.

43. Dad subsequently failed to seasonably supplement his (non)answers.

44. On November 30, 2021, at the close of discovery, Dad served objections

only to all Requests for Production propounded upon him.

45. Trial Exhibit 15, Dad’s Objections to Requests for Productions ordered

by February 13, 2021, and Objections to Requests for Productions for

December 10, 2021, trial, is attached hereto, incorporated by reference.

IV. MOTION TO INCREASE THE AMOUNT OF BOND

46. Pursuant to RSMo. Sec. 526.070 (“Injunction Bond”), “No injunction,

unless on final hearing or judgment, shall issue in any case, except in

suits instituted by the state in its own behalf, until the plaintiff, or some

responsible person for him, shall have executed a bond with sufficient

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surety or sureties to the other party, in such sum as the court or judge

shall deem sufficient to secure the amount or other matter to be enjoined,

and all damages that may be occasioned by such injunction to the parties

enjoined, or to any party interested in the subject matter of the

controversy, conditioned that the plaintiff will abide the decision which

shall be made thereon, and pay all sums of money, damages and costs

that shall be adjudged against him if the injunction shall be dissolved. In

lieu of the bond the plaintiff may deposit with the court such sum, in

cash, as the court may require, sufficient to secure such amounts.”

47. Here, TRO was granted in part based on ex-parte communications and

Judge’s erroneous belief that Mom sued Carol Love. Dad’s legal bills

filed on January 5, 2021 (hidden from public view on the casenet until

Judge Heggie changed their security level on August 12, 2021) show ex-

parte communications between Dad’s counsel Elliott Goldberger and

Judge Bruce F. Hilton. Only in August 2021 did Dad set for hearing his

Fourth Motion for Contempt filed fifteen months prior, on May 28, 2020.

48. As of the trial, Motion for Contempt is more than one and a half year old.

It contains stale allegations from previous Motion for Contempt dated

back to 2019, plus allegations from Petition for TRO filed on May 20,

2020, and denied on May 27, 2020, for which Dad already obtained a

remedy through Habeas Corpus Writ filed and granted on May 20, 2020.

49. Under these circumstances, a $1,000 bond ordered by Judge Bruce F.

Hilton on November 25, 2020, is grossly insufficient. As of January 5,

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2021, Dad attested to $17,223.00 in legal fees. It is expected that at least

as much has been and will be incurred after January 5, 2021. Mom’s

attorney and GAL each are in practice in excess of twenty years.

50. Proper amount of bond should be no less than double of Dad’s fees as of

January 5, 2021, multiplied by three (attorneys), or $103,338.00.

V. SUPPLEMENTAL ARGUMENTS IN SUPPORT OF CASE

REVIEW BY THE PRESIDING OR SUPERVISING JUDGE

51. Judgment of January 12, 2021, by which Judge Bruce F. Hilton recused

himself, reads, in part: “The threshold issue is whether or not this Court

can continue to be fair and impartial.”

52. During the hearing on January 2, 2018, testimony of therapists Barbra Danin

and Salicia Mazero was being taken into the record. Attached hereto and

incorporated herein is a transcript of proceedings on January 2, 2018 (Mom’s

Trial Exhibit 3). At said hearing, Judge Bruce F. Hilton made the following

comments to witness Salicia Mazero: “I'm more concerned about this young

woman being exposed to civil -- a civil lawsuit… I can guarantee that in the

event that this witness testifies that she will be sued. However, she is here to

testify at her own risk and peril… (Mom’s Trial Exhibit 3, p. 56, ln. 4-10);

“Like I said, I'm more concerned about this woman testifying trying to do

the right thing here, but I'm more concerned about her being exposed to

some serious civil liability.” (Mom’s Trial Exhibit 3, p. 57, ln. 10-14); “ I'm

really concerned about this therapist testifying. And Ms. Pudlowski, you

know, has a motion in limine to prohibit her from testifying. The Court will

entertain it. I mean, so far you're just laying foundation, but I'm concerned

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about her testifying about anything that she observed or any discussions she

had with this minor child without father's consent.” (Mom’s Trial Exhibit 3,

p. 60, ln. 20-25, p. 61, ln.1-2).” After persistent comments by Judge Hilton

that the witness will be sued by Dad, the witness was excused.

53. Such persistent articulation by Judge Hilton of position of one party

(Dad) tantamount to witness intimidation is highly irregular. It is coupled

with continuous alleged, and admitted, ex-parte communications, with

GAL and Dad’s counsel, specifically to therapy and custody.

54. On March 12, 2018, Petitioner filed a Motion for Disqualification of

GAL, which alleged, in part: “[t]he Judge reported in open court on

March 12, 2018, that he and the GAL had an ‘off the record’ discussion

about the case outside of the presence of Petitioner or Respondent's

attorneys just prior to taking the bench’; GAL “has failed to recommend

to the Court that all contact for the minor child with Respondent cease

immediately in ignorance of the evidence of sexual abuse and in direct

conflict with the recommendations of three separate individual therapists

of the child, two of whom were chosen by the GAL and one of whom,

Ms. Evangeline Bauer, is currently appointed by the Court to provide

therapy to the child… leaving the child without the necessary therapeutic

outlet while the child is being re-traumatized by Respondent…”; “GAL

violated Section 210.145 RSMo., by failing to "hotline" the disclosure of

sexual abuse by the child that was reported to her by Anna McAdoo, a

court appointed supervisor for the child, and she failed to factually

represent this disclosure to the Court…”; and “GAL's first reaction to a

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disclosure of the minor child to a therapist found by Petitioner, was to

admonish Petitioner for not seeking the approval of Respondent in her

selection of said therapist instead of investigating the claim made by the

child, when the GAL suggested to Petitioner that she find a therapist and

had already recommended to the Court that the child begin therapy with a

therapist endorsed by Barbara Danin, the child's former therapist.”

55. Petitioner was subsequently intimidated into withdrawing her motion.

56. GAL-selected and Court-ordered therapist Evangeline Bauer witnessed

Judge Hilton threatening Mom on March 12, 2018: “keep it up and I will

take her from you. Get out of my courtroom.”

57. On May 18, 2020, Evangeline Bauer executed an Affidavit of Truth, attached

hereto and incorporated herein as Exhibit 1, attesting to witnessing these

occurrences. See Exhibit 1 incorporated into Mom’s Trial Exhibits 12 and

12.1, Binder of Business Records of Evangeline Bauer.

58. Mom’s Motion for TRO was never heard on March 12, 2018.

59. Therapist Evangeline Bauer further attested that, as a “court-ordered

therapist for Saskia van den Bergh, [she appeared] at trial on March 29,

2018. The GAL, Elaine Pudlowski objected to me taking the stand… her

objection was that [her] testimony would ‘break privilege.” That day, [she]

was prohibited from testifying to the abuse allegations of my client Saskia

van den Bergh.” Exhibit 1 incorporated into Mom’s Trial Exhibits 12/12.1.

60. Pursuant to Rule 4-8.3 (Reporting Professional Misconduct), “(a) A

lawyer who knows that another lawyer has committed a violation of the

Rules of Professional Conduct that raises a substantial question as to that

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lawyer's honesty, trustworthiness or fitness as a lawyer in other respects

shall inform the appropriate professional authority.” Under Rule 4-8.3

(b), “A lawyer who knows that a judge has committed a violation of

applicable rules of judicial conduct… shall inform the appropriate

authority.”). Rule 4-8.3(b) compliance is not mooted by Judge’s recusal.

61. Pursuant to the Supreme Court Rule 2-2.3, “[a] judge shall perform the

duties of judicial office without bias or prejudice”. Comment to the Supreme

Court Rule 2-2.3, reads: “A judge must avoid conduct that may reasonably

be perceived as prejudiced or biased.”

62. Two and a half years after the Motion to Disqualify GAL, and more than

one year since Judge Hilton implicated his ex-parte contacts, also

disclosed in Dad’s legal bills, provide ample time for reporting and self-

reporting of violations, as mandated by Rule 4-8.3. A review by the

Presiding Judge or Supervising Judge was requested almost a year ago.

63. Petitioner incurred reasonable attorney’s fees and costs herein.

CONCLUSION

64. Based on the Court record and statements on the record of Judge Bruce F.

Hilton, Dad’s Petition for TRO and Permanent Injunction and his Fourth

Motion for Contempt should be DENIED without a hearing.

65. The Court should order Dad to pay sufficient bond as requested herein.

66. The Court should make findings and declarations on the record that TRO

herein was void ab initio, barred by res judicata and/or collateral estoppel

due to its prior denial on August 31, 2020, and by ex-parte communications.

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67. This Court should strike all Dad’s pleadings for failure to provide any

discovery and to comply with Court order to provide discovery responses.

68. A rehearing will unduly waste the parties’ resources and the judicial time.

WHEREFORE, Petitioner respectfully requests that the Court deny and strike

Respondent’s pleadings, including but not limited to Application for TRO filed on

November 24, 2020, and Respondent’s Fourth Amended Motion for Contempt filed on

May 28, 2020, make findings that TRO granted in part on November 25, 2020, is void ab

initio, barred by illegality and/or res judicata and/or collateral estoppel, and/or grant an

Order and Judgment to dissolve TRO issued on November 25, 2020, issue an Order to

Increase Bond to $103,338.00 secured by Respondent’s real and personal property, that

the Court issue an Order that Respondent shall pay to Petitioner her damages as provided

by RSMo. Sec. 526.070, grant Motion to Dismiss for Improper and/or Insufficient

Service, Motion in Limine and other relief, order case review by the Presiding Judge

and/or Supervising Judge, order that Respondent pay all Mom’s and GAL’s reasonable

legal fees and costs, and prays for other just and proper relief in the circumstances.

Respectfully submitted,

NATALIA MCKINSTRY, LLC

By:
Natalia D. McKinstry, #52453
1000 A Geyer Avenue
St. Louis, Missouri 63104
(314) 621-8006 (phone)
[email protected]

Attorney for Petitioner

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CERTIFICATE OF SERVICE

The undersigned attorney certifies that a true copy of the foregoing Motion was filed
electronically and thereby was served by the Court’s electronic system to all parties and
counsels of record enrolled in eservice in this cause, pursuant to Missouri Supreme Court
Rule 103.08, on this 3rd day of December, 2021.

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