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Malicious Prosecution? Rule 11?

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_HappyDad_

Active Member
State- KY

Joint Legal
50-50 parenting time

I have a hearing coming up. My EX has once again filed a bunch of outright lies. EX has falsely claimed that I failed to comply with some aspects of our divorce decree from 2019. Rather than following up with their attorney, they just filed a motion for contempt. I can prove that I have complied with hard evidence. The compliance occurred years ago. Over the last three years, they have made no inquiries on the matters, so notice has not been given any issues are at hand. OC made no due diligence to investigate the honesty of their client's claims.

The motion also alleges that I did not obtain permission or consent to take the kiddo out of state during my court-ordered vacation. The orders do not require such and only state, "Parties are to provide 30 days notice of the vacation."

Their motion also states that I never allow kiddo to call during my vacation. This is also false, and I have phone records to prove such. And phone calls are not even part of the Court Orders.

Further, once I picked up kiddo for that vacation, my EX tried to file kidnapping charges on me. Then before my flight even took off, the EX was texting and calling me. Our orders clearly state, "Parties are to communicate only via Our Family Wizard."

Throughout my vacation, I kept receiving texts that said, "have kiddo call me." I eventually had to block EX's number. I always have kiddo call the EX during my vacations. However, I did not while out of state this time due to the previously mentioned attempt to file kidnapping charges, and I did not want to deal with law enforcement while on vacation.

When EX's attorney relayed that a parent cannot be arrested for "kidnapping" their child, they went to the police station and tried to file the charge with the police the next day. EX lied in the report, as well. And, it should be mentioned that EX willingly released kiddo to me the day my vacation began.

The back story to the vacation, I gave nine months' notification of my vacation dates, and the EX repeatedly replied that my "vacation is denied." I politely informed the EX that one parent could not deny another's vacation.

I could write a novel here. But, beyond an answer and counterclaim, would I be able to file a malicious prosecution against my EX? I have been accused of all kinds of things over the years that I can prove are false, and many others are just outrageous allegations. The allegations I would pursue are all in past motions.

Also, what about filing a Rule 11 sanction against OC for not checking the veracity of their client's allegations before filing motions? It would seem that OC does not even review the orders to see if the allegations are applicable.

For the most part, I ignore the EX's rantings, and I do not engage in fighting. I'm just sick of this harassment, and I'm looking for options to stop the nonsense.
 


zddoodah

Active Member
would I be able to file a malicious prosecution against my EX?
No (at least not successfully).


Also, what about filing a Rule 11 sanction against OC for not checking the veracity of their client's allegations before filing motions?
You cannot "fil[e] a Rule 11 sanction." You could make a motion, and you should discuss that with your attorney. IMO, Rule 11 motions are RARELY worth the time, effort and expense.
 

Taxing Matters

Overtaxed Member
Also, what about filing a Rule 11 sanction against OC for not checking the veracity of their client's allegations before filing motions? It would seem that OC does not even review the orders to see if the allegations are applicable.

For the most part, I ignore the EX's rantings, and I do not engage in fighting. I'm just sick of this harassment, and I'm looking for options to stop the nonsense.
I agree with zddoodah's response and will add this: the filing of a Rule 11 motion would not "stop the nonsense". Kentucky's Rule 11 concludes with the following sentence: "The Court shall postpone ruling on any Rule 11 motions filed in the litigation until after entry of a final judgment." So filing a Rule 11 motion won't cut off the litigation. Instead, the litigation will run its full course anyway and the judge will rule on it after the case is done. The only way the motion would end the litigation early would be if it scared the other side enough to prompt your ex's attorney to withdraw the lawsuit. If the attorney is any good the lawsuit should be good enough to at least survive a Rule 11 challenge, so the chances of the opposing side simply dropping it after you file the motion would not be great. I agree that you should discuss it with your lawyer, just don't get your hopes up that this will be the magic bullet that ends the litigation.
 

_HappyDad_

Active Member
I hope that filing a Rule 11 Motion in advance would urge OC to review their motion, perform the proper due diligence, and withdraw due to no truth in the allegations.

I have seen a few correspondences between the attorneys where OC states to my attorney, "I'm not going to waste my time looking over the orders..."

On the other hand, it seems like one attorney filing a Motion for Rule 11 against another is akin to Internal Affairs investigating another officer.
 

Zigner

Senior Member, Non-Attorney
When EX's attorney relayed that a parent cannot be arrested for "kidnapping" their child, they went to the police station and tried to file the charge with the police the next day.
A question and a statement about this:

How are you privy to communications between your ex and her attorney?

A parent certainly can be arrested for "kidnapping" their child. Parental kidnapping is illegal in all states and at the federal level. Of course, your matter doesn't rise to anywhere near the level that it would be considered parental kidnapping (as evidenced by the fact that the police [apparently] didn't do anything, but the general and legal concept of a parent kidnapping a child is a real thing.
 

_HappyDad_

Active Member
Kentucky statutes on kidnapping exclude parents and legal guardians, as confirmed by my attorney, and also by my own research. Custodial Interference applies in KY.

OC forwards the EX's emails to my attorney, asking "What is this about". My attorney forwards it to me and says "review and advise".

In the past, OC has forwarded several emails with my EX's communications. Whether he is careless or not professional is up for debate. This is why I am inquiring about Rule 11.

Edit: i may have been referencing federal kidnapping laws since my vacation was out of state. I had researched this in anticipation of her filing the charges before my vacation
 
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adjusterjack

Senior Member
I have a hearing coming up. My EX has once again filed a bunch of outright lies. EX has falsely claimed that I failed to comply with some aspects of our divorce decree from 2019. Rather than following up with their attorney, they just filed a motion for contempt. I can prove that I have complied with hard evidence.
Then you go to the hearing and prove you aren't in contempt. Once you've done that, at the hearing you can ask for sanctions. No guarantees there.

Beyond that, you aren't going to prevent your ex from being a lunatic. Rule 11 and malicious prosecution isn't going to happen, and you'll just be wasting your money.
 

LdiJ

Senior Member
I agree that you need to discuss things with your attorney. However, since you have 50/50 parenting time why was this even an issue? Did you have to take some of the other parent's parenting time for your vacation? Could you not have solely done it on your time?

I also think that it was unwise in the long term scheme of things to block mom's calls.
 

Ohiogal

Queen Bee
Just going to leave this here:
2018-Ohio-4928

yeah... that attorney filed frivolous stuff and was sanctioned. She didn't like it and tried to get her firm to take it up...
The firm she owns... Didn't work. And yes I know it is Ohio but this goes to the point that Rule 11 sanctions do happen.

Sorry AJ. (Post #8).
 

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