Torts

[JamesVincent]

Here's an intellectual exercise for the attorneys in here. As most of you know my divorce and subsequent custody battles were hell. Recently my ex ramped up the vitrol and has gone off the deep end, even by her standards. You name it, she's done it. Called social services out here over 30 times this year alone, called county attorney and told him I was refusing to follow the custody order, called the sheriff and told him I refused medical care for Mary, and the list goes on, culminating in the flat out abuse of the twins and my having to go to Maryland to take them from her. Here's the poser.

I had a guardian ad litem for the last of our custody battles. I talked to him recently about what has been going on and asked, "what can I do to shut this bitch up?" His answer? Sue her

My question is this: I asked him if these problems rose to the level of a tort action. His answer was yes. Is that the case? Can you file a tort action over non-physical damages? And also slander and libel? In general, I know you aren't in KY.

[LaVidaRoja]

Well, in California, there's intentional infliction of emotional distress. Don't know if KY has that. IF she is openly and willfully not complying with the custody order, I believe the Court could hold her in contempt. However, you'd have to get the judge to agree with that.

[Judge Roy Bean]

This is of course, not legal advice, but KY has a misdemeanor statute:

525.070 Harassment, (1) A person is guilty of harassment when, with intent to intimidate, harass, annoy, or alarm another person, he or she: (e) Engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose.

Check with your local law enforcement agency and see how to go about filing a complaint.

[JamesVincent]

She's already been held in contempt twice, once for non payment and once for harassment. Didn't stop her.

She has already been charged with harassment in Maryland and they nolle prosequ it. Its a misdemeanor and it's real bite is jail time and they refuse to jail her.

That's why I asked what would shut her up. She doesn't think anyone will do anything since no one has to this point. Maryland judges are all about the mother and it's taking forever to get them to release jurisdiction to Kentucky, the first request they actually refused to answer and let it lapse so now I have to file it again.

Now suing her for a few grand with a stipulation that she owes more if it happens again, that may shut her up for awhile.

[Arthur Rubin]

I am not a lawyer, but " intentional infliction of emotional distress " was mentioned in one of the courses I took in law school; the book implied it is a tort in many US jurisdictions.

I don't think filing a report with a government agency can be libel, but I've certainly been wrong before.

If small claims courts are allowed to handle "intentional infliction of emotional distress" and/or "civil" "harassment", and you can get a single (or multiple, separate) claims below the limit, your costs might be less. You'd probably have to file in Maryland, though, or whatever her residence is.

Did I mention I'm not a lawyer?

[The Observer]

My layman two cents' worth is that the bar for proving that a person purposely inflicted emotional distress is going to be set pretty high. I would think that the court would discount some of the past incidents as simple collateral damage of the marital/divorce discord between you two; in other words this is the kind of thing that happens in many marriages and divorces, especially when custody of children is at the core of the fight. And if there is any evidence, no matter how trivial or infrequent the incident may have been, where you may have been an instigator, the court may see this as further evidence that all of this is simply bad blood.

I read about an interesting prolonged divorce/custody battle in the last couple of years where it is pretty clear the ex-wife is simply doing everything possible to punish her ex over the several years the court proceedings has taken. Yet, nothing really has been done by the court to set things straight.

[Pottapaug1938]

I am not a lawyer, but " intentional infliction of emotional distress " was mentioned in one of the courses I took in law school; the book implied it is a tort in many US jurisdictions.

I don't think filing a report with a government agency can be libel, but I've certainly been wrong before.

If small claims courts are allowed to handle "intentional infliction of emotional distress" and/or "civil" "harassment", and you can get a single (or multiple, separate) claims below the limit, your costs might be less. You'd probably have to file in Maryland, though, or whatever her residence is.

Did I mention I'm not a lawyer?

Well, I was a lawyer; and I remember hearing, in law school, that unlike most torts in which you must prove act, intent and causation, there is a fourth requirement in IIED cases. You must also prove that the intentional acts caused you damage; and if I remember correctly, it has to be well above the "I had to run to get my teddy bear and snuggle him/her underneath my blankie" level.

[JamesVincent]

So would being in therapy and medicated for anxiety attacks count? Or damages to reputation?

Edit: or the dozens of CSS investigations that were deemed unsubstantiated?

[The Observer]

The more documentation that you have to show that there was a pattern and method to her behavior, and that you can show that this behavior had a direct nexus to you physically/mentally suffering, the more likely you are to prevail. I would also think that if you can prove that she knew this kind of behavior was going to harm you, you would have a better chance.

Again, just my layman opinion of little worth.

[wserra]

New York does not recognize IIED in the context of husband and wife:

Assuming that New York law now permits "recovery for the intentional infliction of mental distress without proof of the breach of any duty other than the duty to refrain from inflicting it" [citations omitted], strong policy considerations militate against judicially applying these recent developments in this area of the law to the factual context of a dispute arising out of matrimonial differences.

Weicker v. Weicker, 22 N.Y.2d 8 (1968). I guess the reasoning is that abuse is just part of being married.

KY recognizes the tort of IIED. Childers v. Geile, 367 S.W.3d 576 (Ky. 2012). However, as far as cursory research shows, KY courts have not addressed its application in matrimonial contexts.

BTW, I've been happily married for thirty years.

ETA: Strangely enough, while I don't see any KY IIED cases between spouses, there are several that involve clergymen who had affairs while supposedly engaged in marriage counseling. Does this happen a lot down there, James?

[JamesVincent]

Lol, that I couldn't answer. Are they alleging that the clergy is making bacon with one of the spouses going through counseling? If so that would seem to be an issue of too little, too late. Biggest issues we have with churches in these parts is that they let people like Kim Davis be their spokesperson. (that whole episode happened less then a mile from the house)

When I talked to the county attorney he told me there was nothing he could get involved in. State police said the same thing. They don't even have a telephone misuse law out here, only terroristic threatening, which doesn't apply. I will be talking to Rocky here soon so I will mention a new law covering it to him.


Edit: how does that affect divorcees? Are we still supposed to be suffering for love?

[Number Six]

Mediation? In these broken relationships it seems that diplomacy becomes the way to go instead of legal action. "Restraining orders" I've heard don't work very well either.

[JamesVincent]

Already been through mediation and I've had 5 restraining orders against her. The judge also put the equivalent of a restraining order in our custody agreement, didn't work there either.

[LaVidaRoja]

So, the question becomes, in either jurisdiction, can a civil action be brought where the Court has granted a restraining order but failed to punish the offender with either fines or jail time for contempt? Was/has she been found in contempt, and what penalties have been imposed against her?

[JamesVincent]

She was held in contempt for non payment and was ordered to make up her arrears. She did do that since they started garnishing her check. She was also held in contempt for her treatment of me. She was allowed to purge that by following the rules, which she didn't. Didn't matter since everytime I would bring up the crap she continued to do I was told to stop complaining. Both of them were in Maryland.

Kentucky does not have jurisdiction yet so they haven't done anything. They tried to get md to release jurisdiction and md refused. They are trying again, just signed the papers last week.

Maryland had the restraining orders, all have lapsed.

[JamesVincent]

I did talk to an attorney out here. She confirmed that Kentucky does admit IIED cases in general. She is checking on precedent for my situation.

I also talked to an attorney friend of mine out here who handles primarily elder abuse, wills, things like that. He told me his sister, also an attorney, argued here that Kentucky needed to take jurisdiction of an estate case and convinced the court to order the venue changed from Ohio. Trying to get hold her.