2010.06.28 - Kyron's Dad files for divorce and restraining order

[debs]

I admit I'm confused about this.

If my husband tried to kill me and I found out about it, I would likely use that info as grounds for divorce, RO, custody, etc..

In fact, if my husband had physically beat me himself. - I would likely use that info as grounds for divorce, RO, custody, etc..

In either case - if he beat me or MFH'd me, I would divorce him AND press criminal charges.


In the case of my husband beating me:

Should I not allege in my divorce filing that I wanted a divorce because my husband beat me? Would that be considered my attempt to try my husband for a criminal charge in civil court?

Do I really have to wait for criminal court proceeding on my beating to get divorced from this horrible man and get permanent custody of my children?

Maybe this MFH divorce allegation is similar to a spousal abuse divorce allegation - and the answer is simply the same as would be in a typical spousal abuse divorce proceeding?

Anyone know how that works? Because, thank goodness, I do not.

You would offer proof. You would not call your soon-to-be-ex to testify that he in fact beat you, and expect compliance with that accusation, without a reasonable objection by his defense to suggest you are not bringing any evidence that he in fact beat you.

 

[Sherbie]

Oh but it isn't; accusing Terri of a MFH and never offering any substantive proof is hearsay. LE becomes a hearsay witness. What there has to be is solid proof of a MFH. Receipts. Audio tapes. Pictures of money transferring hands. Witnesses. Then the defense gets to counter it. But that all falls into a discovery process, which seems to be something people want to avoid, also, just to get to "justice". A judge better damn well make a ruling on the truth of the accusations. Or that judge needs to lose his/her seat.

Well it isn't the civil judge's job to try and adjudicate a criminal case. If there isn't sufficient evidence to suggest to him that those accusations are true, I'm sure he won't take it into consideration in any rulings he makes. Both sides can present their evidence and make arguments. If the MFH plot is flimsy, he won't consider it at all.

Again, though, it's not his job to adjudge Terri guilty or not guilty of anything criminal. He will look at the evidence as it relates to divorce and custody matters only.

As I said, this is all JMO! We need to get a professional in here to help us. I have only a basic understanding of civil proceedings, and this is very complicated (not the filings, but the manner of proceeding with them).

 

[Sherbie]

If you were Terri Horman, would you really REALLY buy into this?

I don't think anyone is saying Terri should LIKE any of this stuff. We're just trying to figure out the legal aspects of it. If the civil judge decides to hear these matters and she's called to testify, she doesn't have a choice -- doesn't matter if she buys into it or not. She'll either have to testify or plead the 5th, IMO. Whether that is fair is an entirely different matter.

 

[Sherbie]

She is between a rock and a hard place.

The name of the game is to keep TH from talking about anything associated with a crime she may be charged with in a future criminal proceeding. This is especially true with regards to giving sworn testimony at a civil case related to the same events.

But, it is easier to get a civil win if criminal charges have been proven which is why civil cases are often fought after the criminal charges.

The divorce proceedings are tied very closely to a crime (MFH) and in order to refute them TH must testify. But no way would it be wise to give sworn testimony about an event that you may be charged with. But by not testifying it could imply guilt in a civil trial. But OTOH her civil testimony could also be used to impeach her in a criminal trial.

rock meet the hard place.

Exactly! You have a great way of boiling things down to the nitty gritty, JBean...thank you!

 

[debs]

if you're questioning the whole judicial process, then that's another can of worms. Is it a fiction that pleading the 5th won't be considered by the jury as proof of guilt? Does the 5th amendment give undue protection to the guilty? Maybe WS should start a Constitutional law board

I'm not questioning the judicial system at all. I am simply reinforcing the rights of a citizen (Terri) to not have to incriminate herself by what she may or may not say in a civil court regarding charges of a criminal matter that have not to this date been charged to her.

It is not fiction to assume that pleading the 5th will not be considered by the jury as proof of guilt. The fact of the matter is, we don't know what moves a jury to make their decision. The 5th Amendment doesn't give any protection to the guilty. It also doesn't give any protection to the innocent. The 5th Amendment protects the CITIZENRY of the United States, and it doesn't measure guilt or innocence at all. We have the right, as citizens, to not incriminate ourselves, whether we are guilty or innocent or the guy who bought a 6-pack at the store and maybe can't quite remember whether he was there or not when the store got robbed.

We just can't let someone push us into a place where we have to testify where what we say CAN and WILL be used against us, no matter our guilt or innocence.

 

[mmmagique]

The term "witch hunt" is a result of innocent people being accused of being witches. IMO, by saying this, Houze is talking about Terri's innocence.

FR: Mr. Houze is well paid to say exactly what he means. If he were talking about innocence, he would have made that quite clear. (that's mho)

And sometimes, when you go hunting bear (or whatever)...you find a bear! (or whatever) :angel:

 

[gardeness]

FR: Mr. Houze is well paid to say exactly what he means. If he were talking about innocence, he would have made that quite clear. (that's mho)

And sometimes, when you go hunting bear (or whatever)...you find a bear! (or whatever) :angel:

I have to laugh! My post that motivated this was about the words he actually used, then I was told that what he didn't say meant more, so I addressed that, and now...we're back to the words he actually used. Too funny!!

 

[debs]

Well it isn't the civil judge's job to try and adjudicate a criminal case. If there isn't sufficient evidence to suggest to him that those accusations are true, I'm sure he won't take it into consideration in any rulings he makes. Both sides can present their evidence and make arguments. If the MFH plot is flimsy, he won't consider it at all.

Again, though, it's not his job to adjudge Terri guilty or not guilty of anything criminal. He will look at the evidence as it relates to divorce and custody matters only.

As I said, this is all JMO! We need to get a professional in here to help us. I have only a basic understanding of civil proceedings, and this is very complicated (not the filings, but the manner of proceeding with them).

The problem is, nothing in this civil matter won't be available in a criminal matter. Terri's testimony WILL be used against her, and forcing her to give a testimony at all, even if it is to say "I plea the 5th" WILL be used against her. There is nothing Terri Horman can say, anywhere, in any setting, with anyone present, that will NOT be used at some point if a criminal case against her proceeds. For anyone to assume that a criminal charge won't be made against her is naive, at best. But to suggest that her attorneys are savvy enough to see how this is all gonna boil down, which somehow indicates her guilt in a charge she still hasn't been accused of, ........ well...... blind eye, meet deaf ear.

 

[Sherbie]

You would offer proof. You would not call your soon-to-be-ex to testify that he in fact beat you, and expect compliance with that accusation, without a reasonable objection by his defense to suggest you are not bringing any evidence that he in fact beat you.

I think it comes down to the fact that she will have a choice to defend herself...or not. Her testimony isn't the only means of rebutting the accusations. Her attorney can cross-examine any witnesses and present evidence other than the testimony of Terri to refute the charges.

In that situation, having the sacred right of being able to take the 5th is still a godsend. And it's a choice. IMO, it's a no brainer that it's better to lose some money and even custody in a civil case than to implicate yourself in a criminal matter. You can always revisit the custody issue, and money is just money.

Definitely not a good situation for Terri, but Kaine's not exactly rolling in a bed of roses himself if these accusations are true. It's a civil case, so his rights are equal to hers in that particular proceeding. IMO, her rights shouldn't supercede his because she "might" face some charges.

It's a different discussion, though, whether the court should defer to any potential criminal action. I kinda think if charges aren't filed by the time the civil judge is ready to hear that case, it will proceed as it would for anyone else.

All IMO, which ain't worth much...but I'm enjoying the discussion.

 

[mmmagique]

The problem is, nothing in this civil matter won't be available in a criminal matter. Terri's testimony WILL be used against her, and forcing her to give a testimony at all, even if it is to say "I plea the 5th" WILL be used against her. There is nothing Terri Horman can say, anywhere, in any setting, with anyone present, that will NOT be used at some point if a criminal case against her proceeds. For anyone to assume that a criminal charge won't be made against her is naive, at best. But to suggest that her attorneys are savvy enough to see how this is all gonna boil down, which somehow indicates her guilt in a charge she still hasn't been accused of, ........ well...... blind eye, meet deaf ear.

Then...what's the solution? Wait for a criminal charge that may or may not come? If LE doesn't have enough evidence to make the charges stick, they will probably not bring charges until they feel they do. Whether that is 3 days from now or 30 years from now.

I'm under the impression from these boards (but could be wrong) that the longest they can hold these issues in abeyance (the civil stuff) is two years. But there is a baby in the picture. I would think a judge would want to get the matter of custody settled ASAP, just for the good of the child.

 

[debs]

I think it comes down to the fact that she will have a choice to defend herself...or not. Her testimony isn't the only means of rebutting the accusations. Her attorney can cross-examine any witnesses and present evidence other than the testimony of Terri to refute the charges.

In that situation, having the sacred right of being able to take the 5th is still a godsend. And it's a choice. IMO, it's a no brainer that it's better to lose some money and even custody in a civil case than to implicate yourself in a criminal matter. You can always revisit the custody issue, and money is just money.

Definitely not a good situation for Terri, but Kaine's not exactly rolling in a bed of roses himself if these accusations are true. It's a civil case, so his rights are equal to hers in that particular proceeding. IMO, her rights shouldn't supercede his because she "might" face some charges.

It's a different discussion, though, whether the court should defer to any potential criminal action. I kinda think if charges aren't filed by the time the civil judge is ready to hear that case, it will proceed as it would for anyone else.

All IMO, which ain't worth much...but I'm enjoying the discussion.

I don't want to live in a country where someone can be forced to testify against themselves, no matter when or if charges might be brought.

Even if they're guilty.

Especially if they're not.

 

[Emma Peel]

You would offer proof. You would not call your soon-to-be-ex to testify that he in fact beat you, and expect compliance with that accusation, without a reasonable objection by his defense to suggest you are not bringing any evidence that he in fact beat you.

I would sit there with my black eye and insist my husband did it. And his attorney would say ... prove it. Hopefully I would have other relevant evidence. Incident Report, Hospital report, witnesses.

Okay then. Terri's attny(s) would also need to say prove it. And Kaine's attorney would have to provide evidence - at the least the LE investigative information Kaine based his decision on.


Why if Kaine believes the MFH was a real attempt on his life, should he not use that as grounds for his divorce filing?

Why don't they (Terri's counsel) want to go ahead and force Kaine to prove it by going forward with divorce hearings? Why seek abatements/delays?

 

[debs]

Then...what's the solution? Wait for a criminal charge that may or may not come? If LE doesn't have enough evidence to make the charges stick, they will probably not bring charges until they feel they do. Whether that is 3 days from now or 30 years from now.

I'm under the impression from these boards (but could be wrong) that the longest they can hold these issues in abeyance (the civil stuff) is two years. But there is a baby in the picture. I would think a judge would want to get the matter of custody settled ASAP, just for the good of the child.

The solution is simple: Kaine Horman agrees to a divorce pursuant to whatever laws rule the State of Oregon and they move on. If, after he's obtained his divorce, he chooses to pursue criminal charges against Terri, he does that in a criminal court.

 

[STEADFAST]

I don't want to live in a country where someone can be forced to testify against themselves, no matter when or if charges might be brought.

Even if they're guilty.

Especially if they're not.

I don't want to live in a country where someone could plot to kill me and I'd have to stay married to him so that I wouldn't interfere with his attempt to get away with it.

 

[mmmagique]

I don't want to live in a country where someone can be forced to testify against themselves, no matter when or if charges might be brought.

Even if they're guilty.

Especially if they're not.

But charges could be brought against anyone at any time. (for anything)

Terri doesn't get an automatic pass just because the charges that may be brought against her are more obvious than the charges that *could possibly* be filed against me (for stealing your brownie the other night...) :angel:

 

[Sherbie]

The problem is, nothing in this civil matter won't be available in a criminal matter. Terri's testimony WILL be used against her, and forcing her to give a testimony at all, even if it is to say "I plea the 5th" WILL be used against her. There is nothing Terri Horman can say, anywhere, in any setting, with anyone present, that will NOT be used at some point if a criminal case against her proceeds. For anyone to assume that a criminal charge won't be made against her is naive, at best. But to suggest that her attorneys are savvy enough to see how this is all gonna boil down, which somehow indicates her guilt in a charge she still hasn't been accused of, ........ well...... blind eye, meet deaf ear.

I disagree about her taking the 5th in a civil case. That absolutely cannot be used against her in any criminal proceeding whatsoever, IMO. Only actual answers she gives might be used, but not the fact that she takes the 5th.

The problem is that no one can assume one way or the other whether charges will be filed against her. She may know of some reason that will happen, but the rest of us out here have seen very little evidence to suggest charges will be filed. She is being investigated, obviously. IMO, she is even a POI for LE. But we can't predict whether there will be enough evidence to arrest/indict her at this point.

It's a problem for a judge hearing a civil matter or even a separate criminal matter to consider that which has not happened (and which might or might not ever happen) in deciding how to proceed with the matters he's charged with hearing.

I have confidence that her attorney, who by all accounts is top shelf, will ensure that her rights are protected. I certainly don't know enough to know how he'll do it, but I think she's in very good hands.

I totally get your frustration, but I think part of it might stem from an incorrect assumption. I am almost positive, Debs, that someone's taking the 5th in a civil case cannot be used against them in any way in a criminal trial.

 

[mmmagique]

The solution is simple: Kaine Horman agrees to a divorce pursuant to whatever laws rule the State of Oregon and they move on. If, after he's obtained his divorce, he chooses to pursue criminal charges against Terri, he does that in a criminal court.

Kaine can't pursue criminal charges against anyone. Only LE can do that. He can file complaints and hope they do, but that doesn't mean they have to. His only true remedy (that he has control of) is civil.

 

[debs]

I don't want to live in a country where someone could plot to kill me and I'd have to stay married to him so that I wouldn't interfere with his attempt to get away with it.

Who is making Kaine stay married to Terri? She has agreed the divorce should happen.

What proof is there for a murder-for-hire? Right. Just what Kaine has put on an application for a restraining order which says that LE gave him reason to believe......

Let that make everyone sleep with an eye open, right there.

 

[Emma Peel]

The solution is simple: Kaine Horman agrees to a divorce pursuant to whatever laws rule the State of Oregon and they move on. If, after he's obtained his divorce, he chooses to pursue criminal charges against Terri, he does that in a criminal court.

One problem is (IMO) Kaine wants assured sole custody of baby K & Kyron. The MFH plot (if true) would get him that. So (IMO) Kaine seeks to insert this MFH plot as standing for sole custody...

 

[Emma Peel]

I disagree about her taking the 5th in a civil case. That absolutely cannot be used against her in any criminal proceeding whatsoever, IMO. Only actual answers she gives might be used, but not the fact that she takes the 5th.

The problem is that no one can assume one way or the other whether charges will be filed against her. She may know of some reason that will happen, but the rest of us out here have seen very little evidence to suggest charges will be filed. She is being investigated, obviously. IMO, she is even a POI for LE. But we can't predict whether there will be enough evidence to arrest/indict her at this point.

It's a problem for a judge hearing a civil matter or even a separate criminal matter to consider that which has not happened (and which might or might not ever happen) in deciding how to proceed with the matters he's charged with hearing.

I have confidence that her attorney, who by all accounts is top shelf, will ensure that her rights are protected. I certainly don't know enough to know how he'll do it, but I think she's in very good hands.

I totally get your frustration, but I think part of it might stem from an incorrect assumption. I am almost positive, Debs, that someone's taking the 5th in a civil case cannot be used against them in any way in a criminal trial.

IMO, Terri's criminal attorney will get any civil proceedings/testimony/5th's taken excluded from the criminal without much difficulty. IMO and AZlawyer needs to weigh in, but yes, Houze is that good.