Q: Can rule to show cause be filed against wifes lawyer in our divorce case for falsely stating I took funds out 401k plan?
The judge ruled that during the divorce proceedings we were not to take any funds out of the 401k plan. I have statements to prove that no withdrawals have been made during the procedings of this divorce. However in an effort to make me look disobedient in front of the judge, my wifes lawyer submitted a rule to show cause against me that stated that I took $2500 out of my 401K plan and that I am behind in my child support payments and requested a $1500 fine from me. I was behind in my payments because they changed the amount so many times, but I never took funds out 401k plan. The judge granted the opposing lawyer the $1500 request.
A:
I would need to see the actual order to adequately answer this question. Did the judge's fine go towards child support (or was it awarded largely because of you being behind), or was it just a punitive fine for allegedly taking money out of your 401(k)? I would guess the judge awarded the money more because of you being behind on child support than taking that amount out of your retirement plan.
I don't think a petition for rule is really appropriate though-such a petition is typically used to enforce a previous court order. In a petition for rule, you are arguing that the other party is not following a court order. That is not the case in your current situation. Instead, you should file a motion to vacate the order. You are probably unlikely to succeed though...why did you not raise this argument at the petition for rule, or bring this paperwork with you at the time? A judge is going to be hesitant to undo his own order without a pretty strong justification.
A: No. A rule to show cause is a remedy that may only be used against a person who is subject to the court's jurisdiction and does not comply with a court order. Neither applies in your situation.
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